United States Court of Appeals For the First Circuit

No. 18-1400

JEAN C. FERNANDEZ-GARAY,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges, and McElroy, District Judge.

Tim Bower Rodriguez on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.

April 30, 2021

 Of the District of Rhode Island, sitting by designation. MCELROY, District Judge. Habeas Petitioner Appellant

Jean C. Fernandez-Garay ("Fernandez" or "petitioner") pled guilty

to one count of possession of a firearm in connection with a drug

trafficking crime and entered into a plea agreement with the

government which included a sixty-month joint sentencing

recommendation. The Presentence Investigation Report ("PSR")

provided to the district court by the United States Probation

Office included two accounts of Fernandez's violative conduct

under

(c)(1)(A). One account reflected the facts

recited in the plea agreement ("plea version") and the second

version included facts found by the probation officer ("probation

version"). The difference between these versions concerns

petitioner's alleged conduct in handling the firearm. Trial

counsel for Fernandez made no objection to the probation version

contained in the PSR before the sentencing hearing.

At sentencing, the district court imposed a 120-month

sentence instead of the mandatory minimum sentence of sixty months

that was recommended by both parties. Following a direct

sentencing appeal in which this Court affirmed the 120-month

sentence, Fernandez filed a petition pursuant to

to vacate, set aside, or correct the sentence, asserting

ineffective assistance of counsel for his attorney's failure to

object to the discrepancy between the two versions of events

- 2 - contained in the PSR. The district court denied the relief sought

and declined to issue a certificate of appealability, finding that

our previous decision was "law of the case" and precluded Fernandez

from relitigating the issue in the § 2255 petition. This Court

granted a certificate of appealability as to petitioner's claim of

ineffective assistance of counsel. Fernandez asks us to reverse

the trial court and remand with instructions to vacate the

sentence, to order a new PSR, and to hold a new sentencing hearing

or, in the alternative, to remand the case for an evidentiary

hearing.

For the following reasons, we affirm the denial of the

petition but, as will become clear, we do so for a different reason

than that given by the district court.

Background

In 2012, members of the Puerto Rico Police Department

and Agents of the United States Department of Homeland Security

arrested Fernandez and a grand jury indicted him for drug offenses

and possession of a firearm. At the time of his arrest Fernandez

was wearing a mask, carrying a backpack containing drugs and an

- 3 - extended magazine of bullets, and holding a gun, which he threw to

the ground as he tried to evade police.1

In 2013, just before his trial was set to begin,

Fernandez entered into a plea agreement and pled guilty to

possessing a firearm in furtherance of a drug-trafficking crime

under

(c)(1)(A). The parties agreed to a joint

recommendation of a sixty-month prison sentence, the mandatory

minimum. Prior to the sentencing hearing, a PSR was submitted to

the district court that included two different versions of the gun

possession facts. The plea version, reflecting the facts

contained in the agreement, described a masked Fernandez holding

a backpack containing drugs and an extended magazine for a gun in

one hand and carrying a Glock handgun in the other. The PSR also

included the probation version that mirrored the plea version with

two exceptions. The first, not important here, detailed the

specific drug quantities contained in the backpack. The second,

the focus of his habeas argument, described Fernandez pointing the

1 The facts of the underlying criminal case have been thoroughly described in United States v. Fernandez-Garay,

(1st Cir. 2015), in which this Court affirmed petitioner's sentence on direct appeal. In this opinion, we refer only to those facts pertinent to the issue before us.

- 4 - gun at a police officer before turning to run.2 Trial counsel for

Fernandez made no objection to the "pointed gun" described in the

PSR.

At sentencing, and relying on the facts included in the

PSR, the district court imposed a 120-month prison sentence,

rejecting the joint recommendation of the sixty-month mandatory

minimum sentence of imprisonment. The trial judge offered the

following explanation at sentencing:

Before the Court is a 25-year-old U.S. citizen. Mr. Fernandez has four previous dismissed cases and one acquitted at state level. He has ten siblings, and he has a relationship -- an absent relationship with his father for the past two years. He's also the father of two young daughters. He had an 11th grade high school education but has earned his GED while being incarcerated. Nonetheless, the Court also takes into consideration the seriousness of the offense charged. This defendant was wearing a . . . mask, was hiding his identity. He was carrying a .40 caliber Glock pistol loaded with an extended magazine containing 22 rounds of .40 caliber ammunition. And he also had a backpack containing 22 rounds of .40 caliber ammunition -- I'm sorry, in a backpack containing 119 small bags of marijuana, 119 small bags of cocaine, 262 parcels of heroin,

This version finds factual support in the record. First, 2

the affidavit included in the original criminal complaint alleges Fernandez pointed his gun at the police officer before dropping his backpack. Second, the probation officer confirmed that allegation with the arresting officer, who corroborated the affidavit. Third, Fernandez admitted in his own affidavit that he "showed" his gun to deter an attack from an approaching individual, who turned out to be the arresting officer.

- 5 - 38 parcels of crack, and three pills of an unknown substance. A small notebook was also in the backpack, which contained assorted drug sales. Finally, during the intervention of the police, Mr. Fernandez also pointed the gun that he was carrying at a Police of Puerto Rico officer and threw the backpack towards the officer. The officer ran after him, at which point he saw Mr. Fernandez throwing the gun to the ground. Therefore, it is the judgment of this Court that Mr. Fernandez-Garay is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 120 months. Only after the district court pronounced its sentence did defense

counsel object to the PSR description of Fernandez "pointing" the

gun. The district judge cut off trial counsel's objections and

Fernandez appealed his sentence on both procedural and substantive

grounds. Fernandez-Garay,

. After careful review,

this Court affirmed.3

In considering the direct sentencing appeal, this Court 3

analyzed the petitioner's four procedural arguments and overall substantive attack on the reasonableness of the sentence. First, we determined that the district court could, and did, properly rely upon the PSR despite its reference to Fernandez having "pointed his gun at an officer," because counsel neglected to make a timely objection to the PSR under Federal Rule of Criminal Procedure 32. Fernandez-Garay,

. Next, while we agreed that the district court erred in its reference to a notebook that was not part of the sentencing record, we concluded that the record – absent the notebook "afterthought" – did provide sufficient support for the sentence given the seriousness of the offenses.

. Third, we were unmoved by the argument that the district court had not considered all statutory sentencing factors because a mechanical application is not required, and the record reflects the district court's sufficient assessment of all

- 6 - Fernandez then filed a petition for habeas corpus4 with

the district court and sought to vacate his conviction and sentence

based upon ineffective assistance of counsel pursuant to § 2255.

The district court denied the petition. Although the district

court identified the two-prong test that must be satisfied to

prevail on an ineffective assistance of counsel claim, it did not

undertake the analysis established by the Supreme Court in

Strickland v. Washington,

(1984). Concluding, at

the circumstances that led to its sentencing determination. Id. at 5-6. Finally, as to the argument that the trial court failed to adequately explain the sentence, we considered the substantive reasonableness of the sentence and the district court's rationale and found that it satisfied the plausibility standard. Id. at 6- 7. We recognized "a panoply of facts to which [the trial court] alluded in open court immediately before imposing the sentence" and concluded that they supported the substantive reasonableness of the 120-month term of imprisonment. Id. at 6. We could not find that the "court failed to adequately state its reasons for choosing its upwardly variant sentence." Id. at 6. Although Fernandez attempted to impugn the trial judge's review of the conduct related to the counts that were dismissed as part of the plea agreement, we determined that no error occurred because such conduct may be assessed "as long as [it] was not used in construing the defendant's guideline range." Id. at 7 (citing USSG § 1B1.4) comment. (backg’d.) 4 In addition to the ineffective assistance of counsel claims, Fernandez's habeas petition alleged that "the government failed to abide by the sentencing recommendation stipulated in the plea agreement." Fernandez-Garay v. United States, No. 16-1058 (PG),

, at *2 (D.P.R. Apr. 4, 2018). As to this claim, the district court considered the record and found that the government "complied with the [plea] agreement" and had stood by the sixty-month recommendation.

.

- 7 - least in part,5 that Fernandez was attempting to relitigate the

reasonableness of his sentence and the court's use of the PSR

facts, issues already decided by this Court on direct appeal, the

trial court determined that the law of the case doctrine barred

Fernandez from "a second bite at the apple."

While we agree that the law of the case doctrine applies

to previously litigated issues, we disagree with the trial court's

application of that principle to petitioner's ineffective

assistance claim. Fernandez has not previously sought relief for

ineffective assistance of counsel. This is his first bite at that

particular apple.

Standard of Review

We granted a certificate of appealability with respect

to the claim in the § 2255 petition that counsel provided

ineffective assistance by failing to make a timely objection to

the PSR writer's conclusion that the petitioner had pointed a

firearm at a police officer. We undertake a de novo review of the

district court's legal conclusions and apply a clear error standard

to its factual findings. Cody v. United States,

, 52

5With respect to Fernandez's argument that trial counsel failed to conduct an independent investigation regarding whether the gun was pointed, the district court concluded that the same facts would have nevertheless been included in the PSR. The trial judge deemed the claim "conclusory, underdeveloped and unsupported by evidence" in the record. Fernandez-Garay,

at *4.

- 8 - (1st Cir. 2001) (citing Familia-Consoro v. United States,

(1st Cir. 1998)).

Discussion

The right to legal representation in a criminal

proceeding, and by extension the right to a fair trial, "plays a

crucial role in the adversarial system embodied in the Sixth

Amendment" because access to a lawyer enables the defendant to

"meet" the government's case. Strickland,

. It

is not enough, however, to be an attorney in name only. Instead,

attorneys must deliver, at minimum, "effective" representation or

"adequate legal assistance" to their clients.

at 686 (quoting

Cuyler v. Sullivan,

(1980)). Effective

assistance is due at all "'critical stages of a criminal

proceeding,' including when [the defendant] enters a guilty plea."

Lee v. United States,

(2017) (quoting Lafler

v. Cooper,

(2012)).

When the adequacy of representation is called into

question, the Supreme Court directs a two-part inquiry to test

whether "counsel's assistance was so defective as to require

reversal of a conviction . . . ." Strickland,

.

A court must "first determine whether counsel's representation

'fell below an objective standard of reasonableness.'" Padilla

v. Kentucky,

(2010) (quoting Strickland, 466

- 9 - U.S. at 688). Next, "we ask whether 'there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.'"

(quoting Strickland,

). To prevail, a petitioner

must "make[] both showings" under Strickland, otherwise "it cannot

be said that the conviction . . . resulted from a breakdown in the

adversary process that renders the result unreliable."

.

On appeal, Fernandez maintains that defense counsel's

failure to make a timely objection to the PSR amounted to deficient

representation. But for that error, he argues, a series of events

could have combined to create the probability of a lesser sentence.

Had his attorney properly objected, the district court would have

addressed and, in his estimation, likely corrected the

"misstatement" in the PSR that Fernandez had pointed the gun at a

police officer. In turn, he urges, the district court would have

had before it a PSR that accurately reflected the government's

case, the plea agreement, and the joint recommendation for the

mandatory minimum sixty-month sentence.

On direct appeal of petitioner's sentence, we addressed

the trial court's reliance on the PSR (including the "pointed gun"

fact) and explained that any objections to such reports "must be

made before" the sentencing hearing. Fernandez-Garay, 788 F.3d

- 10 - at 4 (emphasis in original). Because trial counsel failed to

object within the 14-day window provided by Rule 32(f)(1), we held

the trial judge properly relied on the report as written.

Picking up that baton, Fernandez presses for a finding that he

received ineffective assistance during his sentencing because his

attorney neglected to object as required under the Federal Rules

of Criminal Procedure.

Strickland Prong One: Reasonableness

In assessing whether counsel's representation fell below

the reasonableness standard, the Supreme Court has established a

two-prong approach. "First, the defendant must show that

counsel's performance was deficient. This requires showing that

counsel made errors so serious that counsel was not functioning as

the 'counsel' guaranteed the defendant by the Sixth Amendment."

Strickland,

. The question here is whether

petitioner's trial attorney committed so serious an error as to be

dysfunctional when he neglected to raise an objection to the PSR.

However, we need not assess the "performance component"

under Strickland when "it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice

. . ." as is often the case.

. We find this appeal to

be one such case.

- 11 - Strickland Prong Two: Prejudice

The second Strickland prong requires that a "defendant

must show that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different."

. The Supreme Court

articulates the varying effects of such errors as follows:

Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

at 695–96.

Without deciding whether petitioner's trial counsel

failed to meet reasonable professional standards, the prejudice

prong seals the fate of this appeal. "An error by counsel, even

if professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on

the judgment."

at 691 (citing United States v. Morrison,

(1981)). Here, the statute provides for a minimum

of sixty months and a maximum of life in prison for violating

§924(c)(1)(A) with the mandatory minimum being the guideline

- 12 - sentence.6 Among the "panoply of facts" in this case, we must

determine whether there is a probability that but for the "pointed

gun" reference the outcome would have been different.

Fernandez argues that an objection to the PSR and an

investigation into the "pointed gun" statement had the probable

potential to reduce his sentence by half. According to Fernandez,

his trial attorney's failure to object to the "pointed gun" led

to the longer sentence. He urges that "had trial counsel objected

to the misstatement, a reasonable probability exists that the

misstatement would have been stricken from the PSR."

Petitioner asks us to make several assumptions to find

prejudice. First, Fernandez argues that "throughout the

proceedings" and within the plea agreement the government "took

the position it could prove only that [petitioner] possessed a

firearm and nothing further." Because the PSR described the

government's position that he merely possessed the firearm and had

not pointed it at anyone, Fernandez next asks us to infer that the

government "was maintaining its position" and "could not prove he

pointed a firearm at an officer." He argues that, with the

6 In our previous analysis of the district court's sentence, we explained that in this case "the mandatory minimum sentence--60 months--is the guideline sentence." Fernandez-Garay,

(citing United States v. Rivera-González,

(1st Cir. 2015); USSG § 2K2.4(b)).

- 13 - government's stance so acknowledged, it was "objectively

unreasonable" for his attorney not to object to the probation

version. From there, Fernandez asks that we follow him a bit

farther and make the third assumption that if his trial counsel

had objected there is a reasonable probability that either the

government would have:

(1) joined defense counsel's objection, (2) not contested the objection or offered any evidence in support of the probation officer's statement, or (3) unsuccessfully contested the objection because it had waived any right to do so, and, in any event, taken the position it couldn't prove Mr. Fernandez-Garay pointed a firearm at anyone thereby making it reasonably probable it could not have successfully contested an objection to the misstatement by its own admission.

Petitioner contends that, if trial counsel objected, there is a

reasonable probability that the PSR would have been "corrected"

and, therefore, a reasonable probability that the trial judge would

have imposed a shorter sentence. Although Fernandez places

significant emphasis on each of these probabilities, he has offered

nothing more than conclusory assertions. Most important among

them is Fernandez's implicit assertion that the description of the

"pointed" gun is wrong, and that an inquiry would have shown it

to be a misstatement. While he calls it a "misstatement," he

points to nothing in the record to support his version of the

truth. Indeed, the record weighs against Fernandez with factual

- 14 - support from the affidavit in the criminal complaint, from the

probation officer's investigative efforts, and from the

petitioner's own sworn account reinforcing the probation version

of events.

Conclusion

In reviewing the record, we remain confident that

Fernandez has not been prejudiced by trial counsel's failure to

object. First, and as discussed as part of our consideration of

petitioner's direct appeal, the trial judge's sentencing decision

relied on many more factors than the pointing of the gun. Even

without an allegation that the gun was pointed, Fernandez was

masked, armed with a high-firepower handgun and plenty of

ammunition, had "set himself up to provide one-stop shopping" for

a variety of drugs, led police on a chase, and attempted to flee.

Fernandez-Garay,

. Second, those facts amply support

the sentence imposed, and Fernandez makes no argument to the

contrary. Finally, and as we have set out, the record provided

strong support that petitioner did point the gun at the officer.

We therefore affirm the district court's denial of petitioner's

§2255 motion to vacate his sentence.

- 15 -