United States v. Miguel Vazquez , 532 F. App'x 277 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3648
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UNITED STATES OF AMERICA
v.
MIGUEL VAZQUEZ,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 5-12-cr-00007-001)
District Judge: James Knoll Gardner
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Submitted Under Third Circuit LAR 34.1(a)
July 12, 2013
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Before: GREENAWAY, SHWARTZ, and BARRY, Circuit Judges
(Filed: July 24, 2013)
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OPINION
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SHWARTZ, Circuit Judge.
Miguel Vazquez appeals the sentence imposed upon him, arguing that he received
ineffective assistance of counsel during his sentencing hearing. For the reasons herein,
we will not review the ineffective assistance of counsel claim on direct appeal and will
affirm the judgment of sentence.
I.
As we write principally for the benefit of the parties, we recite only the essential
facts and procedural history. On May 23, 2011, Vazquez entered a plea agreement as to a
54-count information in the Eastern District of Pennsylvania. Counts 1-52 charged
Vazquez with aiding the preparation and filing of false income tax returns for other
people, and Counts 53 and 54 charged Vazquez with filing false income tax returns for
himself. Under the plea agreement, Vazquez agreed to waive all rights to appeal or
collaterally attack his conviction or sentence.
The District Court held a sentencing hearing on June 11, 2012. At the outset of
the hearing, the District Court directed that Vazquez be sworn. After hearing testimony
from a number of character witnesses, the District Court asked defense counsel whether
his client wished to testify and counsel responded affirmatively. Rather than proceeding
with a traditional sentencing allocution, the District Court directed that Vazquez take the
witness stand, recognized that Vazquez was under oath, and directed counsel to inquire of
his client. Counsel asked Vazquez questions concerning the circumstances of his guilty
plea, his receipt of public assistance, and his payment of restitution. Vazquez responded
with fact testimony, but also made statements expressing remorse and his desire to be a
better person in the future. Counsel then asked Vazquez whether there was anything else
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he wanted to say to the District Court before sentencing. The District Court invited
Vazquez to speak in Spanish. He stated:
I want to say I am very sorry for what I have done. I ask the forgiveness of
the United States of America. I thank the federal agents for presenting the
case now instead of later. Perhaps if it had gone on when it’s later, it would
have been worse for me. I thank the Lord that I have come to know Him
and I’ve become spiritual. And I only wish to ask the judge to grant me the
opportunity to re-vindicate my life, be a good husband, help my children
and become a better human being.
App. 55-56.
The District Court then offered the Government an opportunity to cross-examine
Vazquez. The Government inquired as to the circumstances of the charged offenses,
Vazquez’s receipt of public assistance payments, and Vazquez’s charitable contributions.
During a brief re-direct examination, Vazquez testified that he had listed two properties
for sale to put towards restitution. Counsel was then asked to verify that the segment of
Vasquez’s testimony in which he addressed the District Court was “his exercise of his
right of allocution.” App. 65. Counsel verified that it was. The District Court then asked
counsel if Vazquez had anything else to say in allocution, and counsel replied that
Vazquez did not.
After each side presented its sentencing argument, the District Court asked
whether there was “anything further from anyone” and each side responded in the
negative. App. 73. The District Court then announced its sentence of 120 months’
imprisonment, one year of supervised release, restitution of $1,600,000 to the Internal
Revenue Service, and $5,400 in special assessments.
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Vazquez appealed his sentence.1 The District Court had jurisdiction pursuant to
18 U.S.C. § 3231. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We ordinarily do not review claims of ineffective assistance of counsel on direct
appeal. United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003). Rather, the
preferred avenue to raise ineffective assistance claims is a collateral proceeding pursuant
to 28 U.S.C. § 2255 because the district court is “the forum best suited to developing the
facts necessary to determining the adequacy of representation” before the trial court and
has an “advantageous perspective” to evaluate the overall effectiveness of trial counsel.
Massaro v. United States, 538 U.S. 500, 504-06 (2003). Although there is a narrow
exception to this rule in cases “[w]here the record is sufficient to allow determination of
ineffective assistance of counsel,” United States v. Headley, 923 F.2d 1079, 1083 (3d Cir.
1991), this Court routinely declines to review ineffective assistance claims on direct
1
The parties disagree about whether the waiver provision in Vazquez’s plea
agreement precludes the present challenge to his sentence. Because we decline to review
the ineffective assistance claim on direct appeal, we need not, and do not presently,
decide whether Vazquez waived his right to raise such a claim. Rather, we address only
the procedural device to be used if the claim has not been waived and is not otherwise
barred. Thus, nothing herein constitutes a ruling as to whether Vazquez has waived his
right to raise such a claim pursuant to his plea agreement or whether such a claim
predicated upon Fed. R. Crim. P. 32 is cognizable under Section 2255. See Hill v. United
States, 368 U.S. 424, 428-29 (1962); United States v. Adams, 252 F.3d 276, 281 (3d Cir.
2001).
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appeal where either prong of the Strickland2 analysis would be better analyzed in the first
instance before the trial court. See, e.g., United States v. Sandini, 888 F.2d 300, 312 (3d
Cir. 1989) (declining to consider a direct appeal where “the record is insufficient for us to
determine whether a reasonable attorney would have filed a motion to dismiss on speedy
trial grounds”); Thornton, 327 F.3d at 272 (“Even though the Government concedes
defense counsel’s error, the Court’s opinion in Massaro points out that the issue of
prejudice is also best decided in the first instance in a collateral action rather than on
direct review.”) (footnote omitted). For the reasons that follow, both Strickland prongs
are best assessed in this case before the District Court in the first instance.
A. Adequacy of Representation
An assessment of defense counsel’s adequacy during the sentencing hearing may
require a more developed record and, in any event, would be best performed in the first
instance by the Judge present at the hearing. Vazquez’s ineffective assistance claim
concerns counsel’s failure to object when the District Court: (1) placed Vazquez under
oath at the outset of the hearing and later permitted the United States to cross-examine
him; and (2) did not ask Vazquez directly whether he wished to say anything further in
allocution, purportedly in violation of Federal Rule of Criminal Procedure 32(i)(4)(A)(ii).
2
Under the two-pronged test set forth in Strickland v. Washington, a defendant
claiming ineffective assistance of counsel must demonstrate that: (1) counsel’s
performance was deficient, in that it fell below an objective standard of reasonableness;
and (2) the defendant suffered prejudice as a result of the deficiency. 466 U.S. 668, 687
(1984).
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Both of these arguments concerning counsel’s performance would be better considered
via a collateral attack (if such an attack has not been waived).
First, it is conceivable that counsel strategically chose to permit Vazquez to testify
under oath during sentencing. The present record reflects that, after Vazquez’s guilty
plea, the District Court learned of potentially aggravating considerations involving
dishonesty with the United States Probation Office, improper receipt of welfare
payments, and failure to support numerous children. Counsel may have decided that
Vazquez could more credibly address these considerations while sworn and subject to
cross-examination. On the present record, we therefore “have no way of knowing
whether” proceeding in this fashion without objection “had a sound strategic motive.”
Massaro, 538 U.S. at 505.
Second, although the District Court may not have expressly asked Vazquez if he
wished to allocute, the District Court did address Vazquez numerous times during the
sentencing hearing, including a personal invitation to speak in his native language when
Vazquez was about to express regret, seek forgiveness, thank the federal agents involved
in his case, and ask the District Court for a second chance. Under these circumstances,
counsel may have determined that the interaction between Vazquez and the District Court
fulfilled the requirements of Rule 32(i)(4)(A)(ii) and that requesting anything more
would have been unnecessary or strategically unsound. Moreover, the District Court is in
the best position to assess its unspoken interactions with Vazquez that may further
solidify compliance with Rule 32 and show that counsel’s decision not to object to the
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procedure the District Court employed during sentencing was sound. See Green v.
United States, 365 U.S. 301, 304-05 (1961) (“[T]his record, unlike a play, is
unaccompanied with stage directions which may tell the significant cast of the eye or the
nod of the head. It may well be that the defendant himself was recognized and
sufficiently apprised of his right to speak and chose to exercise this right through his
counsel.”). Because the present record appears to reflect that the District Court
personally interacted with Vazquez, who in turn provided statements in allocution, this is
not a case “in which trial counsel’s ineffectiveness is so apparent from the record” 3 that
we will consider Vazquez’s ineffectiveness claim on direct appeal. Massaro, 538 U.S. at
508.
B. Prejudice
Furthermore, assessing whether any deficiency in counsel’s performance at
sentencing prejudiced Vazquez is a task uniquely suited, at least in the first instance, to
the court that imposed his sentence. See Thornton, 327 F.3d at 272 (stating that “the
issue of prejudice is also best decided in the first instance in a collateral action rather than
on direct review”) (citing Massaro, 538 U.S. at 505). The present record reflects that the
District Court considered Vazquez’s statements in light of the sentencing factors set forth
3
Vazquez relies on our holding in United States v. Polk, 577 F.3d 515 (3d Cir.
2009), to argue that this case fits the narrow exception for situations where the record on
direct appeal is sufficient to allow determination of ineffective assistance. In Polk,
defense counsel “freely concede[d] that at sentencing he missed the arguable effect of”
Supreme Court precedent. Id. at 520. There has been no such concession here.
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in 18 U.S.C. § 3553(a) when it imposed a sentence of 120 months’ imprisonment, which
was within the advisory guideline range. Thus, it may be difficult to show counsel’s
performance prejudiced Vazquez in any way, but we will defer to the District Court to
opine on this subject if Vazquez files, and it is determined he has not waived his right to
pursue, a Section 2255 petition.4
III.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence without prejudice to Vazquez’s filing of a petition under 28 U.S.C. § 2255 to
raise an ineffective assistance of counsel claim, to the extent he is found not to have
waived his right to do so.5
4
Although Vazquez cites Adams, 252 F.3d 276, for the proposition that
deficiencies in the allocution process are presumptively prejudicial, we have only applied
the presumption in cases in which the defendant did not address the sentencing court at
all. Moreover, even if a presumption of prejudice attached, the District Court would be
best-equipped to determine whether that presumption could be rebutted in the present
case.
5
The motion of the United States for summary affirmance and to enforce the
appellate waiver will be denied as moot.
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