United States v. Garcia-Pagan , 804 F.3d 121 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1588
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS A. GARCÍA-PAGÁN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
James B. Krasnoo, with whom Benjamin L. Falkner, and Krasnoo
Klehm LLP, were on brief, for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.
October 20, 2015
BARRON, Circuit Judge. Following a brutal home invasion
in Puerto Rico, Luis A. García-Pagán was convicted, after a jury
trial, of carjacking and of carrying a firearm during and in
relation to a crime of violence. The District Court sentenced
García to 420 months' imprisonment. García now challenges his
conviction and sentence. We affirm.
I.
The following evidence of the crime was presented at
trial. At approximately 1:40 a.m. on February 4, 2013, three men
broke into the home of Dr. Noel De León-Roig in Puerto Nuevo,
Puerto Rico. All three intruders wore masks and carried firearms.
De León awoke to one of the men straddling his head and hitting
him in the face. When the lights in the room came on, De León saw
his twelve-year-old son with the other two assailants. One was
pushing a revolver into the boy's mouth. The other held a gun to
the back of the boy's head. At that point, one of the assailants
said, "Doctor, lower your eyes. Lower your arms. This is a
robbery, you son of a bitch."
Over the next hour and a half, the three assailants
terrorized De León and his son. They took tens of thousands of
dollars from De León's safe, along with iPods, computers, watches,
and a plasma TV. The intruders tied up the doctor and his son,
hit them with guns, and threatened to execute them. Around 3:00
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a.m., the assailants left in De León's car, and De León called the
police.
For a stretch of time during the invasion, the robbers
did remove their masks in order to eat pizza and drink soda that
they had found in De León's kitchen. And so De León saw their
faces. De León later identified García as one of the assailants
from a group of nine people in a photo array within one minute of
being shown the photographs. De León made that identification
very soon after the break-in, at approximately 9:00 a.m. the same
day. De León identified García again in the courtroom at trial.
De León described García as "the focused one" of the three
assailants, and he described one of the other assailants, Ricardo
Urbina-Robles, as the leader of the group.
García argued at trial that he had been misidentified.
He introduced the alibi testimony of his wife, his mother, and a
friend. Together, these three people testified that García saw a
film with his family on the evening of February 3, and then,
sometime in the early hours of February 4, returned with his family
to the housing complex where García lived. García's wife testified
that, after their return from the film, García was in bed the
entire night.
After the close of the evidence and before closing
arguments, defense counsel requested a continuance in order to
move for a writ of habeas corpus ad testificandum for Urbina, to
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enable Urbina, who was then incarcerated and awaiting sentencing
following his guilty plea for his involvement in this same crime,
to be present and testify in person on García's behalf.1 See 28
U.S.C. § 2241(c)(5) (providing for such a writ). The District
Court denied the request.
The jury returned convictions as to both counts with
which García had been charged: carjacking, 18 U.S.C. § 2119(1),
and carrying a firearm during and in relation to a crime of
violence, 18 U.S.C. § 924(c)(1)(A)(ii). The District Court
sentenced García to 420 months in prison -- a sentence five years
longer than the sentence the same judge imposed on Urbina. García
appeals.
II.
García challenges his conviction on the basis of the
District Court's supposed error in denying defense counsel's
1 Defense counsel introduced the issue earlier, after the
District Court denied the defense's Rule 29 motion. But counsel
did not request a continuance at that time. Rather, counsel simply
informed the District Court that she had served a subpoena to
obtain Urbina's presence, and that she had been instructed to do
so by the United States Marshals. The District Court instructed
defense counsel that this was the wrong procedure, and that she
should have filed a request for a writ of habeas corpus ad
testificandum. Then, the day before closing arguments, the
District Court raised the issue on its own. The District Court
told defense counsel that it had spoken with the marshals and that
defense counsel had been wrong as to which officer had told her to
file a subpoena. Defense counsel did not request a continuance at
that moment either.
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request for a continuance to file a motion for a writ of habeas
corpus ad testificandum for Urbina. García argues that this denial
deprived him of his Sixth Amendment right to compel the attendance
and testimony of a favorable witness.2
We review the District Court's refusal to grant a
continuance for an abuse of discretion, even if the movant contends
that the denial implicated his Sixth Amendment rights. United
States v. DeCologero, 530 F.3d 36, 74 (1st Cir. 2008). And where,
as here, the defendant requests a continuance after the parties
have rested, the defendant "must . . . show[] that the proffered
evidence was of such importance to the achievement of a just result
that the need for admitting it overrides the presumption favoring
enforcement of the [court's] usual trial procedures." Blaikie v.
Callahan, 691 F.2d 64, 67-68 (1st Cir. 1982). But García has not
made that showing.
The District Court had good reason to decide that a
continuance would be unnecessarily disruptive to the trial
proceedings, especially given the late date at which the request
for more time was made. Even assuming García made a proffer that
Urbina would provide helpful testimony (a premise the government
disputes), the District Court found -- and the record shows --
2 The Sixth Amendment guarantees a criminal defendant the
right "to have compulsory process for obtaining witnesses in his
favor." U.S. Const. Amend. VI.
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that it was not at all clear that Urbina would waive his Fifth
Amendment right and testify if compelled to appear.
If Urbina did testify, the District Court explained, he
would have to identify his accomplices and he "doesn't want to be
called a squealer." And the District Court also noted that it had
spoken to Urbina's attorney and that the attorney had "advised his
client as to what problems he could get into, he has other matters
pending and his client said I don't want to go through a
possibility of getting further charges or perjury or obstruction
of justice or whatever and that his advice to his client, Mr.
Urbina, was that he would not testify."
Moreover, Urbina's testimony would have been up against
the testimony of the victim, De León, who testified that he was
with the assailants for approximately an hour and a half and that
he saw the assailants with their masks off, and who identified
García within a minute of seeing a photograph lineup. Thus, given
the very late stage at which García's counsel requested a
continuance, the District Court's decision to follow its usual
trial procedures was not an abuse of discretion, notwithstanding
García's Sixth Amendment right to compulsory process. See Blaikie,
691 F.2d at 67-68 (concluding that the district court's refusal to
reopen trial to permit an expert witness to testify was not an
abuse of discretion where the proposed witness's testimony was of
limited value to the defendant's case); see also DeCologero, 530
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F.3d at 74-75 (finding no abuse of discretion where the district
court refused a request, two days before the prosecution rested,
that the court either provide funds to expedite a witness's
transport or grant a continuance until the witness's presence could
be secured where there was no good reason for the delay, and where
the "proffered testimony of [the witness] was tangential and
potentially cumulative"); Watkins v. Callahan, 724 F.2d 1038,
1043-44 (1st Cir. 1984) (holding that the district court did not
abuse its "discretion in declining to delay the trial for three
months to await a witness who in all likelihood would [exercise
his Fifth Amendment privilege and] refuse to testify").
III.
García also contends that his prison sentence is
procedurally and substantively unreasonable because it is five
years longer than Urbina's sentence, and because the District Court
did not explain the reason for that disparity. The parties agree
that we should review García's sentence for an abuse of discretion
rather than for plain error, and we proceed on this same
understanding, as García's contentions fail under even that more
forgiving standard.
We begin with García's argument that his sentence of 420
months' imprisonment is procedurally unreasonable because the
District Court failed to explain why that sentence is five years
longer than Urbina's sentence of 360 months' imprisonment. The
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problem for García is that the District Court did offer an
explanation for this difference.
In response to García's motion to amend his sentence, in
which García raised only the disparity argument, the District Court
entered an electronic docket entry denying the motion and referring
García to our decision in United States v. Ayala-Vázquez, 751 F.3d
1 (1st Cir. 2014). In Ayala, we held that a defendant's life
sentence, though longer than the sentences received by
co-conspirators that the defendant claimed were more culpable than
he, was not unreasonable because the defendant was not similarly
situated to his co-conspirators in a crucial respect: the defendant
had gone to trial, while his co-conspirators had pleaded guilty.
Id. at 33-34. Thus, in citing to Ayala, the District Court was
clearly relying on this same distinction between the defendant,
García, who did not plead guilty, and his co-conspirator, Urbina,
who did. And we have relied on this very distinction in cases
involving similar disparities in sentencing lengths to the one in
this case. See United States v. Alejandro-Montañez, 778 F.3d 352,
357, 360-61 (1st Cir. 2015) ("[T]he district court did supply a
sufficient reason for the [more than five-year] disparity between
Defendants and other conspirators: namely, the other conspirators
pled guilty before trial."). So while it would have been
preferable for the District Court to state its reasons for imposing
the harsher sentence more fully, those reasons may be inferred
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from the record nonetheless. Cf. United States v. Fernández-
Cabrera, 625 F.3d 48 (1st Cir. 2010) ("Even silence is not
necessarily fatal; a court's reasoning [for imposing a particular
sentence] can often be inferred by comparing what was argued by
the parties . . . and what the judge did." (quoting United States
v. Turbides-Leonardo, 468 F.3d 34, 41 (1st Cir. 2006))).
García also argues that the difference between his and
Urbina's sentences renders his sentence substantively
unreasonable. But, in light of Urbina's guilty plea, our precedent
forecloses such an argument in this case. See Alejandro-Montañez,
778 F.3d at 360-61; see also Ayala-Vázquez, 751 F.3d at 34
("[B]ecause the coconspirators who received lesser sentences had
entered guilty pleas whereas Cruz stood trial, the district judge
was not required to conform Cruz's sentence to theirs because those
individuals were not similarly situated to him."); United States
v. Navedo-Concepción, 450 F.3d 54, 60 (1st Cir. 2006) ("The
district judge was not required to reduce Navedo's sentence simply
because he -- unlike the other defendants -- chose to go to
trial."). A defendant who pleads guilty "demonstrates by his plea
that he is ready and willing to admit his crime and to enter the
correctional system in a frame of mind that affords hope for
success in rehabilitation over a shorter period of time than might
otherwise be necessary." Brady v. United States, 397 U.S. 742,
753 (1970). But the same cannot be said of a defendant who, like
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García, never accepts responsibility for the crime for which he
has been convicted. Alabama v. Smith, 490 U.S. 794, 801 (1989)
("[A]fter trial, the factors that may have indicated leniency as
a consideration for the guilty plea are no longer present."). For
these reasons, García's sentence is not substantively
unreasonable. See United States v. Pol-Flores, 644 F.3d 1, 4-5
(1st Cir. 2011) ("[T]he linchpin of a substantively reasonable
sentence is a plausible sentencing rationale and a defensible
result." (brackets omitted)).
IV.
García also challenges both his conviction and his
sentence on ineffective assistance of counsel grounds. He contends
that counsel was ineffective during trial in not timely filing a
motion for a writ of habeas corpus ad testificandum to obtain
Urbina's presence and testimony. Second, he argues that counsel
was ineffective at sentencing in not making various arguments on
his behalf.
We have held "'with a regularity bordering on the
monotonous' that ineffective assistance of counsel claims, which
require a showing of deficient attorney performance and prejudice
to the defendant, 'must originally be presented to, and acted upon
by, the trial court.'" United States v. Rodríguez, 675 F.3d 48,
55 (1st Cir. 2012) (quoting United States v. Mala, 7 F.3d 1058,
1063 (1st Cir. 1993)). "This is because an appellate court usually
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is ill-equipped to handle the fact-specific inquiry that such
claims often require." United States v. Ofray-Campos, 534 F.3d 1,
34 (1st Cir. 2008). "In addition, the insights of the trier, who
has seen and heard the witnesses at first hand and watched the
dynamics of the trial unfold, are often of great assistance."
United States v. Moran, 393 F.3d 1, 10 (1st Cir. 2004). Thus, our
practice is to dismiss ineffective assistance claims on direct
appeal without prejudice to their renewal in a habeas petition
brought pursuant to 28 U.S.C. § 2255. See United States v.
Delgado-Marrero, 744 F.3d 167, 197 n.31 (1st Cir. 2014).
We deviate from this practice "only when . . . scrutiny
of the factual record is unnecessary because the attorney's
ineffectiveness is manifestly apparent from the record," id.(quoting United States v. Neto, 659 F.3d 194, 203 (1st Cir. 2011)),
which is not the case here. In considering a § 2255 petition, a
district court will certainly be in a better position to evaluate
in the first instance whether any prejudice resulted from counsel's
not filing in a timely fashion a writ for habeas corpus ad
testificandum. And, too, the district court will be better
positioned than we to develop any facts that may bear on whether
counsel was acting strategically -- rather than ineffectively --
in not making other arguments for leniency at sentencing in a case
involving such egregious criminal conduct. We therefore follow
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our usual practice and dismiss García's two ineffective assistance
claims without prejudice to their renewal on collateral review.
V.
For the foregoing reasons, García's conviction and
sentence are affirmed. García's two claims of ineffective
assistance of counsel are dismissed without prejudice.
- Concurring Opinion Follows -
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TORRUELLA, Circuit Judge, concurring. I join the
court's opinion because our precedent requires us to accept that
the disparate sentence García received was not procedurally or
substantively unreasonable in light of the fact that García did
not plead guilty and his co-conspirator, Urbina, did. See United
States v. Ayala-Vázquez, 751 F.3d 1, 31 (1st Cir. 2014); United
States v. Alejandro-Montañez, 778 F.3d 352, 357, 360-61 (1st Cir.
2015). However, I find it inappropriate and constitutionally
suspect for one defendant to receive a longer sentence than his
co-conspirator when both engaged in the same conduct. In effect,
we are punishing García for exercising his constitutionally
guaranteed rights in opting to go to trial. I fear that our
continued adherence to this belief will only discourage defendants
from exercising the rights that we are all entitled to under the
Constitution.
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