1 17-2072-cr United States v. Welch
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 LO CAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Sq uare, in the City of New York, on the 4 th day of October, two thousand eighteen. PRESENT: GERARD E. LYNCH, PETER W. HALL, Circuit Judges, WILLIAM F. KUNTZ, District Judge. *

---------------- -------------- -------------- -------------- ------------ UNITED STATES OF AMERICA, Appellee,
v. No. 17-2072-cr DANIEL MATTLER, AKA BOONE, BETHLYN FELIX, PATRICK GRAHAM, AKA PETE, STEVE CAYEA, ALLEN SYDE R, ALLAN SNYDER, Defendants, MICHAEL WELCH, Defendant-Appellant.

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* Judge William F. Kuntz, of the United States Dist rict Court for the Easter n District of New York, sitting by designation.2 FOR APPELLANT: David C. Pilato, LaDuca Law Firm, LLP, Rochester, New York, and pro se ( on the supplemental brief ).
FOR APPELLEE: Monica J. Richards, Assistant United States Attorney, for James P. Kennedy, Jr., Uni ted States Attorney for the Western District of New York, Buffalo, New York.
Appeal from a judgment of the United States District Court for the Western District of New York (Siragusa, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the amended judgment of the district court is AFFIRMED

. Following a jury trial in the district co urt, Defendant-Appellant Michael Welch was convicted of conspiracy and substantive counts re lating to manufacturing marijuana plants, in violation of 21 U.S.C. §§ 841(a )(1), 841(b)(1)(A), 841(b)(1)(B), 846, and 856(a)(1). Welch appealed a judgment entered October 26, 2012, sentencing him principally to 144 months’ imprisonment. A panel of this court affirmed Welch’s conviction, but vacated and remanded
his sentence because he was sentenced as a Ca reer Offender under the United States Sentencing Guidelines, and his prior New York State conviction for attempted second-degree burglary did not in fact qualify as a “crime of violence” under § 4B1.2(a) of the Guidelines.
See United States v. Welch , 641 Fed. App’x 37 (2d Cir. 2016) (summary order). On remand, Welch was sentenced to 120 months’ impris onment. He appeals from that amended judgment. We assume the parties’ familiarity with th e facts, record of prior proceedings, and arguments on appeal, which we reference only as necessary to explain our decision to affirm.3 Welch first argues that the district court di d not comply with the procedural requirements of 21 U.S.C. § 851 in applying the 120-mont h mandatory minimum for a person who violates 21 U.S.C. § 841(a)(1) “after a prior conviction fo r a felony drug offense has become final.” 21 U.S.C. § 841(b)(1)(B); see United States v. Espinal , 634 F.3d 655, 662 (2d Cir. 2011) (setting forth the procedural requirement s of § 851). Pursuant to 21 U.S.C. § 851(a), the United States Attorney is required to file a timely an d sufficient enhancement information before the defendant may be sentenced under § 841’s “p rior conviction” enhancement. If the defendant, upon being asked by th e district court, “denies any a llegation of the information of prior conviction, or claims that any conviction a lleged is invalid, he shall file a written response to the information,” and the district court is th en to “hold a hearing to determine any issues raised by the response which would except the person from punishment.” 21 U.S.C. §§ 851(b) – (c).
In this case the district court asked Welch an d his attorneys multiple times if he admitted that he was the person identified in the predicate convictions contained in the § 851 information, and he responded af firmatively, including under oath and after the district court clarified what Welch was answering to. The district court was not required to hold a hearing. Welch also raises the argument, for the first time on appeal, that the convictions contained in the § 851 information were not convictions for a felony drug offenses. To the extent this argument is not waived it is meritless. The certified judgments in the record are for convictions for criminal possession and sale of cocaine, and Welch was imprisoned for more than one year. See 21 U.S.C. § 802 (44).4 Under § 851(e), “ No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the in formation alleging such prior conviction.” Welch is time barred from challenging the validity of the convictions c ontained in the § 851
information. Welch next argues that 21 U.S.C. § 802( 44), which defines the term “felony drug
offense” as “ an offense that is punishable by impr isonment for more than one year under any
law of the United States or of a State or fore ign country that prohibits or restricts conduct relating to narcotic drugs, ma rihuana, anabolic steroids, or depressant or stimulant substances[,] ” is void for vagueness. Welch argues that “conduct re lating to” is “virtually limitless.” Appellant’s Br. at 34; Pro Se Supp. Br. at 2 – 3. “We review de novo challenges to the meaning and constitutionality of statutes . . . .” United States v. Cullen , 499 F.3d 157, 162 (2d Cir. 2007). Welch did not ra ise this argument to the district court before or after his last appeal. We therefore review his sentence for plain error. United States v. Verkhoglyad , 516 F.3d 122, 128 (2d Cir. 2008); United States v. Villafuerte , 502 F.3d 204, 2011 (2 d Cir. 2007). To demonstrate plain error, a defendant must show: “(1) error, (2) that is plain and (3) affects substantial rights.” Villafuerte , 502 F.3d at 209 (citing United States v. Banks , 464 F.3d 184, 189 (2d Cir. 2006); United States v. Doe , 297 F.3d 76, 82 (2d Cir. 2002)). “For an error to be plain, it must, at a minimum, be clear under current law. We typically will not find such error where the operative legal question is unsettled, including where there is no binding precedent from the Supreme Court or this Court.” United States v.
Whab , 355 F.3d 155, 158 (2d Cir. 2004) (internal quotation marks omitted). Welch points to5 no decision that held § 802(44) to be void for vagueness. See United States v. Weintraub , 273 F.3d 139, 152 (2d Cir. 2001). Moreover, any arguable vagueness di d not affect Welch’s substantial rights. Whatever lack of clarity there may be about the furthest limits of the conduct covered by “relating to” the listed subs tances, there can be no doubt that possessing and selling cocaine lie unambiguou sly at the very heart of the definition. It was not plain
error for the district court to follo w § 802(44) in sentencing Welch. Welch also argues that he was provided with ineffective assistance by his counsel before
the district court. “When faced with a clai m for ineffective assistance of counsel on direct appeal, we may: (1) decline to he ar the claim, permitting the appe llant to raise the issue as part of a subsequent petition for writ of habeas co rpus pursuant to 28 U.S.C. § 2255; (2) remand
the claim to the district court for necessary factfinding; or (3) decide the claim on the record
before us.” United States v. Morris , 350 F.3d 32, 39 (2d Cir. 2003) (internal quotation marks omitted). The third course of action is appropri ate when the factual record is fully developed
and resolution of the Sixth Amendment claim on di rect appeal is “beyond any doubt” or “in the interest of justice.” United States v. Khedr , 343 F.3d 96, 100 (2d Cir. 2003) (internal quotation marks omitted). We have expr essed a “baseline aversion to resolving
ineffectiveness claims on direct review.” United States v. Williams , 205 F.3d 23, 35 (2d Cir. 2000). This aversion is due in part to the re asoning that “the allegedly ineffective attorney should generally be given the opportunity to explain the conduct at issue.” Khedr , 343 F.3d
at 100. Welch puts forward no persuasi ve reason why his ineffective assistance of counsel claim should be decided on direct appeal, and we decline to decide it here.6 We have considered all Appellant’s argument s and conclude that th ey are without merit. Accordingly, we AFFIRM the amended judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court