United States v. Giancaterino ( 2001 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 00-20737
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    WANDA T. GIANCATERINO,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. H-99-CR-599-1
    --------------------
    June 14, 2001
    Before   WIENER, DeMOSS, and DENNIS, Circuit Judges
    PER CURIAM:*
    Wanda Giancaterino appeals her jury conviction and sentence
    for manufacturing, transferring, possessing, and concealing
    counterfeit U.S. currency in violation of      
    18 U.S.C. §§ 471-73
    .
    For the first time on direct appeal, she asserts that she
    received ineffective assistance of counsel at trial.
    The only argument Giancaterino has briefed concerns the
    effect her counsel’s alleged ineffectiveness had on her sentence.
    Direct appeal of her conviction is therefore waived.      See Yohey
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined
    that this opinion should not be published and is not precedent
    except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    No. 00-20737
    -2-
    v. Collins, 
    985 F.2d 222
    , 224-25 (5th Cir. 1993); Fed. R. App. P.
    28(a)(9).
    We address the merits of Giancaterino’s ineffectiveness
    argument, despite being raised for the first time on appeal,
    because we find this to be one of the “rare” cases where the
    record allows a fair evaluation of the claim’s merits.       See
    United States v. Navejar, 
    963 F.2d 732
    , 735 (5th Cir. 1992);
    United States v. Higdon, 
    832 F.2d 312
    , 313-14 (5th Cir. 1987).
    In order to establish ineffective assistance of counsel,
    Giancaterino must show that (1) her counsel's performance was
    deficient in that it fell below an objective standard of
    reasonableness, and (2) the deficient performance prejudiced her
    defense.    Strickland v. Washington, 
    466 U.S. 668
    , 689-94 (1984)
    Giancaterino fails to meet either requirement.
    The record establishes that her counsel’s decision to
    proceed to trial after the Government refused a conditional
    guilty plea was a strategic judgment call.    The record is devoid
    of evidence to rebut the “strong presumption that counsel’s
    conduct [fell] within the wide range of reasonable professional
    assistance.”    See 
    id. at 689
    .
    Giancaterino furthermore concedes, and the record supports,
    that she cannot establish the requisite prejudice because it is
    purely speculative whether the district court would have awarded
    a two-level decrease for acceptance of responsibility under
    U.S.S.G. § 3E1.1 had she pleaded guilty.     See id. at 694.
    (defendant must show to a reasonable probability that the result
    of the proceeding would have been different).    AFFIRMED.