Flaquer v. United States , 518 F. App'x 35 ( 2013 )

12-766
Flaquer v. United States of America
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 3rd day of May, two thousand thirteen.
4
5 PRESENT:
6 Richard C. Wesley,
7 Susan L. Carney,
8 J. Clifford Wallace,*
9 Circuit Judges
10 _____________________________________
11
12 Miguel Flaquer,
13
14 Petitioner-Appellant,
15
16 v. 12-766
17
18 United States of America,
19
20 Respondent-Appellee.
21
22 _____________________________________
23
24 FOR PETITIONER-APPELLANT: Miguel Flaquer, pro se, Miami, FL.
25
26 FOR RESPONDENT-APPELLEE: David B. Fein, United States Attorney, District
27 of Connecticut; Felice M. Duffy, Assistant
*
Judge J. Clifford Wallace, of the United States Court of Appeals for the Ninth Circuit,
sitting by designation.
1 United States Attorney, Robert M. Spector,
2 Assistant United States Attorney of Counsel,
3 New Haven, CT
4 Appeal from a judgment of the United States District Court for the District of
5 Connecticut (Kravitz, J.).
6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
7 DECREED that the judgment of the district court is AFFIRMED.
8 Petitioner-Appellant Miguel Flaquer, proceeding pro se, appeals from the judgment
9 denying his 28 U.S.C. § 2255 motion. We assume the parties’ familiarity with the underlying
10 facts, the procedural history of the case, and the issues on appeal.
11 Flaquer argues that the district court erred by denying his claim that his counsel provided
12 ineffective assistance at sentencing when she failed to call co-defendant, Luis Naboa, to
13 challenge the imposition of a leadership role enhancement. Flaquer argues that the district court
14 would not have imposed a role enhancement because Noboa would have testified that he did not
15 know Flaquer well and that he was not Flaquer’s driver for purposes of the conspiracy.
16 On direct appeal from his conviction, Flaquer argued, inter alia, that he was “not a
17 leader, organizer, manager, or supervisor” and that a role enhancement should not have been
18 imposed. See United States v. Flaquer, 361 Fed. App’x 222 (2d Cir. Jan. 19, 2010). We
19 concluded that the district court did not err in applying a two-point role enhancement and that
20 the sentence imposed was not an abuse of discretion. Id. Because we have already held that the
21 imposition of the role enhancement was proper based on the facts considered at sentencing, we
22 have impliedly considered and rejected Flaquer’s ineffective assistance claim. See Yick Man Mui
23 v. United States, 614 F.3d 50, 53 (2d Cir. 2010). We will not disturb that conclusion, and the
24 district court properly concluded that Flaquer’s claim was barred.
2
1 Assuming, arguendo, that Flaquer’s claim is not entirely barred, it is nonetheless without
2 merit. After a searching review of the record, we conclude that the government proved the
3 applicability of the role enhancement by a preponderance of the evidence, and Flaquer has failed to
4 persuade us that the decision not to call Noboa to testify was prejudicial, even if professionally
5 unreasonable. See Strickland v. Washington, 466 U.S. 668, 693 (1984); see also United States v.
6 Ojeikere, 545 F.3d 220, 222 (2d Cir. 2008).
7 Accordingly, it is hereby ORDERED that the district court’s judgment, entered on October
8 23, 2012, is AFFIRMED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
3