United States Court of Appeals

For the First Circuit

No. 10-1938

OMAR MORENO-ESPADA,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella and Thompson, Circuit Judges.

Alexander Zeno, for appellant.

Thomas F. Klumper, 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.

January 19, 2012
TORRUELLA, Circuit Judge. Omar Moreno-Espada ("Moreno")

pled guilty to two counts related to his involvement in a drug

selling conspiracy in the Coamo, Puerto Rico area. Sentenced to

108 months imprisonment and 8 years supervised release, this is the

second time Moreno brings his case before this Court: along with

two co-defendants, Moreno previously pursued a direct appeal,

alleging that errors in the plea proceedings rendered his plea

invalid. We affirmed. See United States v. Moreno-Espada, No. 06-

2759 (1st Cir. Sept. 17, 2008) (unpublished opinion). Moreno now

appeals the district court's denial of his subsequent petition to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

§ 2255, on grounds that he received ineffective assistance of

counsel in violation of the Sixth Amendment. After careful review

of Moreno's claim, we affirm the district court's judgment.

I. Background

On November 9, 2005, Moreno was indicted for conspiring

to possess with intent to distribute five kilograms or more of

cocaine and one kilogram or more of heroin within 1,000 feet of a

public housing project in violation of 21 U.S.C. §§ 841, 846, and 1

860, and conspiring to unlawfully possess, use, or brandish a

firearm in furtherance of or during and in relation to a drug

Specifically, the Las Palmas Public Housing Project in Coamo, 1

Puerto Rico.

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trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and

924(o).

Moreno initially pled not guilty to the charged counts,

but later moved to change his plea. On April 3, 2006, at a change

of plea hearing, Moreno pled guilty to both counts and filed a plea

agreement. As filed with the magistrate judge, the plea agreement

between Moreno and the government stipulated to a total offense

level of 29. This calculation stipulated that Moreno was

accountable for at least 3.5 kilograms but less than 5 kilograms of

cocaine, yielding a base offense level of 30 pursuant to U.S.S.G.

§ 2D1.1. In addition, it reflected a 2-level enhancement for

possession of a firearm under § 2D1.1(b)(1) and a 3-level reduction

for acceptance of responsibility under § 3E1.1. The agreement also

stated that a "safety valve" reduction was inapplicable and assumed

(but did not stipulate) to a criminal history category ("CHC")

of I. Taken together, these factors yielded a sentencing

guidelines range of 87 to 108 months of imprisonment and a

statutory maximum sentence of 40-years imprisonment. Ultimately,

the agreement recommended 87 months imprisonment and 4 years of

supervised release for Moreno.

During the change of plea hearing, the presiding

magistrate judge informed Moreno that the submitted plea agreement,

rendered pursuant to Fed. R. Crim. P. 11(c)(1)(A)-(B), was

precatory in nature, that his sentence would ultimately be "within

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the sound discretion of the sentencing judge," and that the

sentencing court would "not be able to determine the Guideline

Sentence" until Moreno's presentence investigation report ("PSR")

was completed. The magistrate judge also explained to Moreno that

the sentencing court could impose a sentence as high as permitted

by the statutory maximum and that Moreno could not withdraw his

guilty plea if this happened. Moreno stated that he understood the

rights he waived and expressed that he was satisfied with his

attorney, Rafael Anglada ("Anglada"), whom Moreno said had provided

effective legal assistance. On April 4, 2006, the magistrate judge

submitted a report recommending that the district court accept

Moreno's guilty plea, an action the district court took on

April 12, 2006.

Although the proceedings relating to Moreno were

otherwise executed in textbook-like fashion up to this point, a

problematic oversight -- uncorrected by the magistrate judge,

Anglada, or the government -- is crucial to Moreno's appeal: at

the time Moreno pled guilty, his plea agreement did not fully

account for Moreno's potential sentence exposure. Specifically, a

2-level sentence enhancement under U.S.S.G. § 2D1.2(a)(1) --

relevant to Moreno because the charged drug offense took place

"within one thousand feet of . . . [a] housing facility owned by a

public housing authority," 21 U.S.C. § 860(a), and clearly

applicable on the indictment's terms -- was omitted from Moreno's

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plea agreement with the government. Had this enhancement been

factored into the agreement's calculations, it would have shown the

proper sentencing guideline range as to Moreno to be 108 to 135

months imprisonment with a minimum supervised release term of 8

years.

On May 18, 2006, Anglada filed a motion to withdraw

Moreno's guilty plea and withdraw his representation. The motion

explained that Moreno wished to withdraw his plea because he had

learned from his brother, one of his co-defendants, that the

government's evidence against him contained "many lies." The

motion further averred that Moreno had not seen the entered plea

agreement until the day of the hearing and that Moreno no longer

agreed with the agreement's contents. The district court rejected

Anglada's request to withdraw as counsel and denied the motion to

withdraw Moreno's guilty plea, noting that Moreno did not describe

the alleged "lies" in the government's evidence, that Moreno had

stated that he was satisfied with his representation during the

change of plea hearing before the magistrate judge, and that,

contrary to what his motion alleged, Moreno's remarks and

admissions at the plea hearing undercut his claim that he was

"pressured" to plead guilty.

On November 7, 2006, Moreno's PSR was issued. Unlike the

plea agreement, the PSR correctly calculated Moreno's sentencing

exposure and included the 2-level enhancement under § 2D1.2(a)(1),

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assigning Moreno a total offense level of 31 instead of 29, and a

sentencing guidelines range of 108 to 135 months imprisonment.2

Moreno's sentencing hearing was then held on November 14,

2006. The government and Moreno's counsel objected to the PSR's

inclusion of the "protected location" enhancement, explaining that

the parties had not contemplated it in their plea negotiations.3

The court overruled these objections, noting that the plea

agreement's stipulated facts and the indictment both explicitly

referenced the fact that the charged offense had taken place in a

housing project, a protected location. The district court also

concluded that the objections were not preserved because they were

either never filed or were untimely. The district court then

sentenced Moreno to 108 months imprisonment, the minimum term

within the PSR-suggested range, for each charged offense, to be

served concurrently, as well as 8 years of supervised release for

the first offense and 3 years supervised release for the second

offense, to be concurrently served.

Moreno challenged the validity of his plea on direct

appeal to this Court, claiming that "the factual predicate for his

Properly calculated, the statutory maximum term of imprisonment 2

as to Moreno also changed from 40 to 80 years.

At sentencing, Anglada declared that "the parties . . . never 3

contemplated the presence of [the § 2D1.2 enhancement] in the

indictment." Echoing Anglada's assertion, the government stated

that "the parties didn't in fact discuss the [] enhancement." The

government stood by the plea agreement and recommended a sentence

of 87 months imprisonment.

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guilty plea . . . was inadequate." Moreno-Espada, No. 06-2759,

slip op. at 2 (1st Cir. Sept. 17, 2008) (unpublished opinion). On

September 17, 2008, we rejected Moreno's claims along with those of

two of his co-defendants. In doing so, we explained that Moreno

and his co-appellants failed to meet their burden of establishing

that the flaws in the disclosure of their full sentencing exposure

prejudiced their substantial rights. Id. Reviewing under a plain

error standard because neither Moreno nor his co-defendants moved

to withdraw their guilty pleas once their PSRs revealed the flaws

in their plea agreements, we held that the appellants could not

establish a reasonable probability that the outcome of their cases

would have been different in the absence of error. Id.

Undaunted, Moreno subsequently filed the present claim to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255,

now contending that Anglada's failure to consider the full effects

of the charged offense on the sentence that the district court

could impose constituted ineffective assistance of counsel. 

Because Anglada did not advise him that a guilty plea could result

in a sentence within a range of 108 to 135 months imprisonment

instead of the 87 to 108 months reflected in his plea agreement,

Moreno claimed that he did not understand the consequences of

pleading guilty. In addition, Moreno's motion alleged that Anglada

failed to communicate to him that he had the right to withdraw his

plea before sentencing if he believed he had a "fair and just

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reason" to do so, or risk bearing a greater burden on appeal to

this Court. See Fed. R. Crim. P. 11(d)(2)(B); United States v.

Delgado-Hernández, 420 F.3d 16, 19 (1st Cir. 2005) (noting

defendant's claim "subject only to plain error review on direct

appeal" where defendant "failed to call the district court's

attention to the alleged errors in the plea proceedings"); see also

United States v. Mercedes-Mercedes, 428 F.3d 355, 359 (1st Cir.

2005) ("The barriers to withdrawal of a guilty plea become more

formidable when . . . the request is not made until after sentence

has been imposed.").

The district court denied Moreno's § 2255 petition,

dismissing it with prejudice on June 8, 2010. Moreno-Espada v.

United States, No. 09-1848CCC, 2010 WL 2404444 (D.P.R. June 8,

2010). The district court concluded that even if deficient

representation was assumed under the first prong of the ineffective

assistance of counsel test prescribed by Strickland v. Washington,

466 U.S. 668 (1984), Moreno still could not show that he was

prejudiced by Anglada's performance, in large part because Moreno

was told during the plea colloquy that the district court was not

bound by the parties' plea agreement. This appeal followed.

II. Discussion

Under 28 U.S.C. § 2255, a convict in federal custody may

petition the sentencing court to "vacate, set aside, or correct his

sentence on the ground that the court had imposed the sentence in

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violation of federal law . . . ." Ellis v. United States, 313 F.3d

636, 641 (1st Cir. 2002). On appeal, "we review the district

court's legal determinations de novo and the court's findings of

fact for clear error." Parsley v. United States, 604 F.3d 667, 671

(1st Cir. 2010).

Moreno alleges that he received ineffective assistance of

counsel. This claim requires a court to first assess whether

"counsel's representation 'fell below an objective standard of

reasonableness.'" Padilla v. Kentucky, 130 S. Ct. 1473, 1482

(2010) (quoting Strickland, 466 U.S. at 688). Second, we inquire

"whether there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different." Id. (quoting Strickland, 466 U.S. at 694). In the

guilty plea context, this means Moreno has to demonstrate "a

reasonable probability that, but for counsel's errors, he would not

have pleaded guilty and would have insisted on going to trial." 

United States v. Colón-Torres, 382 F.3d 76, 86 (1st Cir. 2004)

(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

A. Objectively Reasonable Performance by Counsel

The first inquiry is whether Anglada's performance fell

below the objective standard of reasonableness that can be expected

of proficient counsel. We have noted in the past that this

assessment must be a "fairly tolerant" one because "the

Constitution pledges to an accused an effective defense, not

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necessarily a perfect defense or a successful defense." Scarpa v.

Dubois, 38 F.3d 1, 8 (1st Cir. 1994).

We need not determine whether Anglada's conduct fell

below this tolerant standard for performance. As we explain below,

whether Anglada's conduct amounted to objectively unreasonable

advocacy or not, Moreno has failed to satisfy Strickland's

prejudice requirement. See Tevlin v. Spencer, 621 F.3d 59, 66 (1st

Cir. 2010) ("A defendant's failure to satisfy one prong of the

Strickland analysis obviates the need for a court to consider the

remaining prong."). However, to the extent we find it necessary to

comment on Anglada's performance, we note that if he has not fallen

through, he may nonetheless still be positioned on the thinnest of

ice. In failing to account for the 2-level sentence enhancement

that 21 U.S.C. § 860 prescribes, Anglada overlooked a weighty

sentencing factor clearly applicable to his client on the express

terms of the charging instrument. Though we need not determine

whether such an oversight rises to the level of objectively

deficient performance under Strickland, Anglada's advocacy for his

client on this particular issue in sentencing certainly left much

to be desired.

B. Whether Moreno was Prejudiced by Anglada's Performance

We conclude that Moreno has not demonstrated that he was

prejudiced by Anglada's conduct. In considering the merits of

Moreno's claim under the second prong of Strickland, we first note

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that Anglada's failure to properly calculate Moreno's sentence

exposure, by itself, does not amount to prejudice. See United 4

States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 1995), rev. on

other grounds, 520 U.S. 751 (1997) ("An attorney's inaccurate

prediction of his client's probable sentence, standing alone, will

not satisfy the prejudice prong of the ineffective assistance

test.").

Moreno contends that Anglada's conduct prejudiced him in

two ways. First, Moreno claims that Anglada's oversight regarding

Moreno points us to United States v. Alvarez-Tautimez, a Ninth 4

Circuit case where counsel's failure to move to withdraw the

defendant's guilty plea was determined to meet Strickland's

prejudice requisite. 160 F.3d 573 (9th Cir. 1998). Moreno's

reliance on Alvarez-Tautimez is misguided. In that case, counsel

learned that a co-defendant successfully moved to suppress certain

key evidence before the district court accepted his client's guilty

plea. The Ninth Circuit concluded that counsel's failure to

research and move to withdraw his client's plea constituted

ineffective assistance, largely because of the likelihood that a

motion to withdraw would have succeeded where the government's case

against his client depended on the same evidence as his codefendant's. See id. at 577 (noting defendant "was prejudiced by

the denial of an opportunity to file a motion to withdraw a plea

which . . . would have been reasonably likely to succeed"). Here,

Moreno cannot point to any similar likelihood of success.

Moreover, Alvarez-Tautimez is also distinguishable from the

instant case because, at the time it was decided, applicable law in

the Ninth Circuit provided the defendant an absolute right to

withdraw a guilty plea prior to sentencing or before the district

court "accepted" such a plea. See id. ("[I]n mid-1994, at the time

of [counsel's] decision not to file a motion to withdraw Alvarez's

plea, there was clear precedent that a plea could be freely

withdrawn at any time before it was accepted by the district

court."). The same is not true here. See United States v. NegrónNarváez, 403 F.3d 33, 36 (1st Cir. 2003) ("It is well established

that a defendant does not have an absolute right to withdraw a

guilty plea.").

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the full extent of his sentence exposure denied him the opportunity

of arguing at the district court that he sought to withdraw his

guilty plea on the grounds that he was unaware of the consequences

of pleading guilty. Second, because "a motion to withdraw a guilty

plea brought before sentencing . . . is reviewed under a more

liberal standard than a motion filed after sentencing," United

States v. Laliberte, 25 F.3d 10, 13 (1st Cir. 1994), Moreno posits

that Anglada's misadvise prejudiced him by making it more difficult

to withdraw his guilty plea on direct appeal to this Court.

Moreno's arguments are unavailing because they fail to

establish that but for Anglada's conduct, Moreno would have

foregone a guilty plea and run the gauntlet of trial. See United

States v. Isom, 85 F.3d 831, 837 (1st Cir. 1996) ("[A] defendant

must show that . . . 'by [counsel's] inadequate performance,

Appellant was induced to enter guilty pleas which he otherwise

would not have entered.'" (quoting United States v. Austin, 948

F.2d 783, 786 (1st Cir. 1991))). Moreno's first attempt to

withdraw his guilty plea before the PSR showing his correct

sentence exposure was issued, upon which he perfunctorily relies as

evidence of his alleged intent to go to trial, does not settle the

matter in his favor. After the district court denied this motion,

the record shows that Moreno was made aware of the fact that he

actually faced a potentially harsher sentence and had repeated

opportunity to again move to withdraw his guilty plea before the

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district court held its sentencing hearing. Each time, Moreno 5

opted not to do so and instead proceed to sentencing. Most

notably, at the sentencing hearing held on November 14, 2006,

Moreno acknowledged that he understood the PSR and its contents

(which included the 2-level enhancement the parties overlooked in

their agreement) and affirmed that he wished the district court to

impose a sentence.6

Moreno's unsupported assertions that he would have

proceeded to trial if not for Anglada's allegedly inadequate

assistance are similarly ineffectual, and we find that the district

court did not err when it dismissed Moreno's § 2255 petition based

on the parties' filings. "A district court may dismiss a section

2255 petition without holding an evidentiary hearing if it plainly

appears on the face of the pleadings that the petitioner is not

entitled to the requested relief, or if the allegations . . .

consist of no more than conclusory prognostications and perfervid

rhetoric . . . ." LaBonte, 70 F.3d at 1412-13. Moreno did not so

Anglada submitted an affidavit which declares, inter alia, that 5

(1) once he became aware of the parties' oversight as to Moreno's

sentence exposure, he informed his client of this fact but (2) did

not discuss with him in "substantial length the fact that he could

ask the Court to allow him to withdraw the plea before the sentence

was imposed thus providing a lesser burden." We note that Moreno

overstates matters when he avers, based on this second statement,

that Anglada wholly "failed to advise him of his right to withdraw

the guilty plea . . . ."

Moreno did, however, state that he would like to "be given the 6

87 months" in the plea agreement, adding that he "was not told

about any additional time."

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much as file sworn statements or affidavits to support his

contention that but for Anglada's conduct he would have sought

trial, and has instead buttressed his case on groundless

affirmations that evidence in the record bears out his claim of

prejudice. We have rejected such bare averments in the past and do

so again today, as such "self-serving statement[s] . . .

unaccompanied by either a claim of innocence or the articulation of

any plausible defense that [] could have [been] raised had [a

defendant] opted for a trial, [are] insufficient to demonstrate the

required prejudice" under Strickland. Id. at 1413. 7

Working within the four corners of Moreno's brief to this

Court, we also find statements that subvert Moreno's claim that he

would have taken his chances at trial if he had been permitted to

withdraw his guilty plea before sentencing. For example, noting

that co-defendants who pled after him received less severe

sentences, Moreno reasons that the record suggests that "had . . .

trial counsel [] asked the Court to withdraw the plea a better plea

could have been renegotiated." Further, claiming the government's

To the extent Moreno does offer a glimpse into defenses he could 7

or would have raised at trial, Moreno just states that the

government's "evidence against him was weak and is weak." We

simply note, as the district court did, that in considering

Moreno's direct appeal we saw matters differently and underscored

that "[e]very indication is that the evidence against [Moreno and

his two co-defendants] was formidable, and that disclosure of their

greater sentencing exposures would have dissuaded none of them from

taking the plea deals offered by the government." Moreno-Espada,

No. 06-2759, slip op. at 2 (1st Cir. Sept. 17, 2008) (unpublished

opinion).

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evidence against him was flimsy, Moreno posits that if he "had

requested the withdrawal of the plea he could have [] received a

more lenient sentence . . . ." Finally, Moreno's brief to this

Court attempts to clarify that references to the possibility of

negotiating a more lenient sentence do "not mean that [Moreno]

would have opted to go to trial, and that he will not do so, if

given the chance. [Moreno] was willing to go to trial, and will go

to trial, unless a favorable agreement is reached."

These affirmations betray that what truly drives Moreno's

appeal may be the fact that he received a more onerous sentence

than the 87 months imprisonment he was perhaps led to anticipate. 

The sentence of 108 months imprisonment that the district court

ultimately imposed, however, was always within the range of

possible sentences Moreno could receive under his plea agreement

and was significantly less severe than the 40-year statutory

maximum to which Moreno thought he exposed himself by pleading

guilty. In any case, it is well settled that post-sentencing

"buyer's remorse" is not a valid basis on which to dissolve a plea

agreement and "the fact that a defendant finds himself faced with

a stiffer sentence than he had anticipated is not a fair and just

reason for abandoning a guilty plea." Mercedes-Mercedes, 428 F.3d

at 359 (quoting United States v. Torres-Rosa, 209 F.3d 4, 9 (1st

Cir. 2000)); see also Miranda-González v. United States, 181 F.3d

164, 165 (1st Cir. 1999) ("A guilty plea will not be set aside

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where a defendant has had a change of heart simply because he now

believes the case against him has become weaker or because he is

not satisfied with the sentence he has received.").

C. On Government's Failure to Properly Calculate Moreno's Sentence

Exposure

Having concluded that the district court correctly denied

Moreno's § 2255 petition to vacate, set aside, or correct his

sentence, we do not believe our work is done. Examining the

record, we are compelled to comment further on the patent missteps

that blemished Moreno's plea proceedings. While our decision today

required us to appraise Anglada's performance, we cannot ignore

that the government's attorneys similarly overlooked a sentence

enhancement that was evident from the face of the indictment when

they ratified Moreno's plea agreement. We are equally cognizant

that this is not the only recent example of a case prosecuted by

the same office of the United States Attorney to arrive at this

Court's doorstep in which the government has entered into a plea

agreement that incorrectly disclosed or otherwise failed to impart

a defendant's true sentencing exposure. See, e.g., United States

v. Ortiz-García, No. 10-2323, 2011 WL 6061352 (1st Cir. Dec. 7,

2011).

We take this opportunity to stress that such neglectful

lapses are not just grist for the mill of appeal, they also chip

away at the essential "presumption that prosecutors can be relied

on to perform their official duties properly." Ferrara v. United

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States, 456 F.3d 278, 293 (1st Cir. 2006). Few contexts exist in

which this presumption of prosecutorial good faith seems as

necessary as when the government secures a defendant's guilty plea. 

Because a defendant who pleads guilty inescapably waives a number

of fundamental constitutional rights, we have warned that "the

government is required to meet 'the most meticulous standards of

both promise and performance'" when it enters a plea agreement,

United States v. Gonczy, 357 F.3d 50, 53 (1st Cir. 2004) (quoting

United States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002)), and

have articulated a government-held "duty to bring all facts

relevant to sentencing to the judge's attention," id. We trust

that prosecutors in this Circuit will be mindful of these

responsibilities when discharging their duties and take no pleasure

in calling them to their attention when they fail to do so.

III. Conclusion

For the foregoing reasons, we affirm the district court's

order denying Moreno's petition to vacate, set aside, or correct

his sentence pursuant to 28 U.S.C. § 2255.

Affirmed.

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