UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CONN, HOFFMAN, and GIFFORD 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist DIEGO M. VARGASPUENTES 

United States Army, Appellant 

ARMY 20091096 

Headquarters, 8th Theater Sustainment Command 

Donna M. Wright, Military Judge 

Colonel James W. Herring, Staff Judge Advocate (pretrial) 

Colonel Lisa Anderson-Lloyd, Staff Judge Advocate (post-trial) 

For Appellant: Captain A. Jason Nef (argued); Colonel Mark Tellitocci, JA; 

Lieutenant Colonel Matthew M. Miller, JA; Major Grace M. Gallagher, JA; Captain 

A. Jason Nef, JA (on brief in reconsideration); Major Grace M. Gallagher, JA; 

Captain A. Jason Nef, JA (on brief). 

For Appellee: Captain Stephen E. Latino, JA (argued); Colonel Norman F.J. Allen, 

III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Christopher B. Burgess, JA; 

Captain Stephen E. Latino, JA (on reply brief in reconsideration); Major Lisa 

Gumbs, JA (on brief). 

24 May 2011 

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OPINION OF THE COURT ON RECONSIDERATION 

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GIFFORD, Judge: 

 A military judge sitting as a general court-martial convicted appellant, 

consistent with his pleas, of wrongful distribution of a controlled substance (three 

specifications) and wrongful possession of a controlled substance, in violation of 

Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a [hereinafter 

UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, 

confinement for two years, and reduction to Private (E-1). The convening authority 

limited confinement to fifteen months, in accordance with a pretrial agreement, and 

otherwise approved the adjudged sentence. 
VARGASPUENTES – ARMY 20091096 

2

 This case is before us for review pursuant to Article 66(c), UCMJ. Appellant 

presented no specific assignment of errors to this Court, but did submit matters 

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find none of 

the issues appellant raised pursuant to Grostefon to merit relief, although we discuss 

below the issue of ineffective assistance of counsel. 

BACKGROUND 

 In his Grostefon matters, appellant asserted, inter alia, that his trial defense 

counsel - Captain (CPT) KH - failed to inform him prior to trial of the consequences 

of his pleading guilty on his ostensible efforts to obtain United States citizenship. 

Appellant submitted his Grostefon matters in the form of a typewritten, unsworn, 

unsigned document. In that document, appellant alleged he asked CPT KH during a 

pretrial meeting whether the Immigration and Naturalization Service would find out 

about the charges against him, and she responded "it depends on how the courtmartial goes."1

 Appellant also asserts that on the day of trial he again asked CPT 

KH about the impact of the charges on his efforts to become a citizen and she "gave 

no advice to appellant on the matter." 

 This Court affirmed the findings and sentence in appellant's case, expressly 

noting its decision of his case based on the facts in the record of trial and 

consideration of the matters he submitted pursuant to United States v. Grostefon. 

Appellant subsequently sought reconsideration of this Court's decision and submitted 

an affidavit in support. As discussed below, the affidavit alleged ineffective 

assistance of counsel although it had modified some of the details regarding what 

appellant alleged he told CPT KH. This Court denied the request for 

reconsideration, as appellant predicated his request primarily on the erroneous 

assertion that this Court had failed to consider his Grostefon matters.2

 

 As a result of the Supreme Court's subsequent decision in Padilla v. Kentucky, 

__ U.S. __, 130 S. Ct. 1473 (2010), this Court sua sponte ordered reconsideration of 

appellant's case and sua sponte granted appellant's motion to attach. As discussed 

below, the Supreme Court's decision in Padilla directly impacted the analytical 

framework for reviewing claims of ineffective assistance of counsel claims in the 

context of guilty pleas by non-United States citizens. See generally Padilla, __ U.S. 

__, 130 S. Ct. at 1482-87. 

 

1

 Appellant does not state at what stage of pretrial discussions this alleged 

conversation occurred, e.g., fact-finding, negotiations, etc. 

2

 This Court also denied the attendant motion to attach, although it expressly noted 

appellant could submit a request for reconsideration, as appropriate, in accordance 

with the Court's rules. 
VARGASPUENTES – ARMY 20091096 

3

 In the sworn statement filed with this Court, appellant avers that when he met 

with CPT KH during a pretrial meeting, he "specifically asked her on (sic) how my 

charges would affect my citizenship eligibility." Appellant states that CPT KH 

stated "it all depended on the outcome of [his] court-martial." Appellant further 

stated that on the day of trial he "brought up the same question on the effect of this 

trial on [his] citizenship." Appellant alleges that it was at this time that CPT KH 

"told [him] the severity of the charges [and that] she did not remember when [he] 

previously brought this issue up about not [being] a United States citizen." We note 

appellant's sworn statement materially varies from his Grostefon matters regarding 

what occurred between he and CPT KH at the one pretrial session and on the day of 

trial regarding the instant issue. 

 As a result of this Court's reconsideration, CPT KH filed an affidavit 

addressing appellant's allegations. In relevant part, CPT KH highlights her 

numerous pretrial meetings (sixteen dates listed) with appellant. Captain KH 

emphasizes that at no time during any of those pretrial sessions or on the day of trial 

did appellant inform her that he was not a United States citizen or that he was 

concerned about the impact that his guilty plea might have on his citizenship status. 

 Captain KH further relates that during pretrial sessions, appellant's focus was 

on "limiting his exposure to extended confinement as a result of a conviction." 

Captain KH notes the "possibility of extended jail time was the main factor in 

[appellant's] desire to plead guilty with the protection of a pretrial agreement." In 

so doing, CPT KH notes the "extensive evidence" in the case, the "likelihood that 

the government would secure a conviction was highly likely, if not certain," and 

briefly delineates the evidence in the case which supports her conclusion (e.g., a 

"source" cooperating with government agents and government agents purchased the 

various drugs from appellant and appellant's confession). Captain KH avers that 

nothing in her discussions with appellant or his personnel records made her aware 

that he was not a United States citizen. 

 Captain KH also comments she had numerous post-trial contacts with 

appellant and (in effect) he did not inform her of his non-citizen status until after 

several interactions and several weeks. Captain KH discusses her efforts to mitigate 

the impact of appellant's conviction. In support of her claim that she was not aware 

of appellant's non-United States citizen status until post-trial, CPT K.H. tenders a 

copy of a letter from appellant's wife - a fellow United States Army soldier. The 

letter was submitted to the convening authority as part of appellant's Rule for 

Courts-Martial 1105 and 1106 matters and, inter alia, advises the convening 

authority: 

I would like to bring to your attention something that 

makes this situation a little bit out-of-the-ordinary. 
VARGASPUENTES – ARMY 20091096 

4

Unfortunately, my husband is not a U.S. citizen. He had 

planned to apply for citizenship while serving, but never 

got around to doing so. He also did not make his legal 

counsel aware of this fact during their pre-trial preparation 

meetings, and only made them aware after all was said and 

done. 

 Captain KH plainly states that appellant's "assertions that he asked me about 

the impact of his guilty plea on his citizenship status are not true. He never 

informed me about his citizenship concerns at any time prior to pleading guilty." 

 Appellant requests this Court order relief in the form of setting aside the 

findings and sentence. In the alternative, appellant requests this Court order an 

evidentiary hearing pursuant to United States v. DuBay, 37 C.M.R. 411 (C.M.A. 

1967). 

 

LAW 

 "Members of the armed forces are entitled to the effective assistance of 

counsel." United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (citing United 

States v. Scott, 24 M.J. 186, 187-88 (C.M.A. 1987); U.S. Const. amend. VI; Article 

27(b), UCMJ (10 U.S.C. § 827(b)). Claims of ineffective assistance of counsel are 

reviewed de novo. Tippit, 65 M.J. at 76 (citing United States v. Perez, 64 M.J. 239, 

243 (C.A.A.F. 2006)). The Supreme Court held, however, a reviewing court 

examining a claim of ineffective assistance of counsel "must indulge a strong 

presumption that counsel's conduct falls within the wide range of reasonable 

professional assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984). 

 In Strickland, the Supreme Court established the now long-standing twopronged standard for analyzing claims of ineffective assistance of counsel. Id. at 

687. To overcome the presumption of competence, an appellant must establish: "(1) 

a deficiency in counsel's performance that is 'so serious that counsel was not 

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment';3

 and 

(2) that the 'deficient performance prejudiced the defense . . . [through] errors . . . so 

serious as to deprive the defendant of a fair trial, a trial whose result is reliable."4

 

 

3

 In Strickland, the first prong requires the examining court to determine whether a 

challenged counsel's performance "fell below an objective standard of 

reasonableness." Strickland, 466 U.S. at 688. 

4

 Under Strickland, the second prong requires "a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 

different." Id. at 694. 
VARGASPUENTES – ARMY 20091096 

5

United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997) (quoting Strickland, 466 

U.S. at 687). 

 In Hill v. Lockhart, the Supreme Court examined a claim of ineffective 

assistance of counsel in the context of a defendant who pled guilty. 474 U.S. 52 

(1985). In Hill, the Supreme Court found the two-pronged standard from Strickland

remains the standard when examining ineffective assistance of counsel claims in the 

guilty plea context. Hill, 474 U.S. at 59-60. In Hill, the Court nevertheless 

provided interpretative guidance of the Strickland standard specific to guilty plea 

contexts. Hill, 474 U.S. at 59-60. 

 The Supreme Court held that the first prong of the Strickland test remains 

"nothing more than a restatement of the standard of attorney competency" 

established by Supreme Court precedent. Id. In that regard, in Strickland the 

Supreme Court found that when analyzing the first prong (i.e., constitutional 

deficiency) in its two prong standard, "[t]he proper measure of attorney performance 

remains simply reasonableness under prevailing professional norms." Strickland, 

466 U.S. at 688. 

 Distinct from its "status quo" interpretation regarding the first prong of 

Strickland, however, in Hill the Supreme Court modified the second prong of 

Strickland to "[focus] on whether counsel's constitutionally ineffective performance 

affected the outcome of the plea process." Hill, 474 U.S. at 60 (emphasis added). 

See also United States v. Ginn, 47 M.J. 236, 247-48 (C.A.A.F. 1997); Tippit, 65 M.J. 

at 77. Restated, an appellant "must show that there is a reasonable probability that, 

but for counsel's errors, he would not have pleaded guilty and would have insisted 

on going to trial." Hill, 474 U.S. at 59. See also United States v. Alves, 53 M.J. 

286, 289 (C.A.A.F. 2000) and Tippit, 65 M.J. at 77. The test is objective. Hill, 474 

U.S. at 60.

 In Padilla v. Kentucky, the Supreme Court provided further interpretive 

guidance for analyzing ineffective assistance of counsel claims in the context of 

guilty pleas when non-United States citizen defendants are at issue. At issue in 

Padilla was a claim of non-United States citizen (Padilla) that his counsel was 

ineffective in failing to advise him that his guilty plea would have adverse 

immigration consequences. Notably, in Padilla, the Supreme Court reiterated that 

the first prong of Strickland was "constitutional deficiency" and repeated that when 

analyzing the prong: "[t]he proper measure of attorney performance remains simply 

reasonableness under prevailing professional norms. __ U.S. __, 130 S. Ct. at 1482 

(quoting Strickland, 466 U.S. at 688). The Court then found "[t]he weight of 

prevailing professional norms supports the view that counsel must advise her client 

regarding the risk of deportation," although it is recognized that many counsel would 

not be well versed in immigration law. Id. at 1482-83. Thus, Padilla held (in 

effect) that when the consequences of the guilty plea vis-à-vis deportation are 
VARGASPUENTES – ARMY 20091096 

6

unclear, counsel must do no more than advise, inter alia, that a guilty plea may carry 

an adverse risk regarding deportation; when the consequences of the guilty plea visà-vis deportation are truly clear, however, the duty to give correct advice is "equally 

clear." Id.

5

 

DISCUSSION 

 In the case sub judice, appellant claims that his counsel was ineffective by 

failing to inform him of the consequences of his guilty plea on his efforts to obtain 

citizenship. In support of his claim, appellant avers in two separate documents - one 

document being sworn - that he told CPT KH prior to and on the day of trial that he 

was not a citizen and questioned her about the impact of his guilty plea. Contrary to 

appellant's claims, CPT KH asserts that appellant made no mention of his citizenship 

status prior to or on the day of trial and expressed no concerns related to his 

citizenship. Captain KH notes that nothing in her discussions with appellant or his 

personnel records made her aware that he was not a United States citizen.6

 "When challenging the performance of counsel, the defense bears the burden 

of establishing the truth of the factual allegations that would provide the basis for 

finding deficient performance." Tippit, 65 M.J. at 76 (citing United States v. Polk, 

32 M.J. 150, 153 (C.M.A. 1991)). When there are conflicting post-trial affidavits in 

a case, the reviewing court must resolve the conflict under the principles articulated 

in Ginn, 47 M.J. at 248. In this case, as discussed below, we find the facts alleged 

by appellant, even if resolved in his favor, would not result in relief as he has failed 

to establish prejudice under the strict standard established in Strickland and its 

 

5

 In Padilla, the Supreme Court found that based on the facts of that case the 

relevant federal law regarding the "removal" consequences for petitioner Padilla's 

conviction was clear. __ U.S. __, 130 S. Ct. at 1483. Thus, counsel's failure to 

provide correct advice to Padilla regarding the presumptively mandatory deportation 

consequences of his guilty plea amounted to constitutionally deficient advice under 

prevailing professional norms. Id. The issue of whether Padilla satisfied the second 

prong of Strickland (i.e., prejudice) was remanded to the lower court. Id. at 1483-

84. 

6

 The record contains information that is relevant to appellant's country of origin 

(e.g., Block IV, Enlisted Record Brief and appellant's acknowledgment of his birth 

country in his DA Form 2823). The information does not establish, however, 

appellant is not a United States citizen, although it is potentially relevant to the 

issue of counsel's duty to investigate. See Strickland, 466 U.S. 690-91. Because we 

resolve this issue based on prong two of Strickland, however, we do not 

substantively address this issue. 
VARGASPUENTES – ARMY 20091096 

7

progeny. Thus, we may resolve appellant's claim without resolving the factual 

dispute. Id.

7

 

 In examining appellant's claim, "we need not determine whether any of the 

alleged errors [in counsel's performance] establish [] constitutional deficiencies 

under the first prong of Strickland . . . [if] any such errors would not have been 

prejudicial under the high hurdle established by the second prong of Strickland." 

Tippit, 65 M.J. at 77 (quoting United States v Saintaude, 61 M.J. 175, 183 (C.A.A.F. 

2005). Appellant claims that he would not have pled guilty but for the defective 

advice of CPT KH in failing to inform him of the impact of his guilty plea on his 

citizenship status. See Hill, 474 U.S. 59-60. In support of his contention, appellant 

stated that his wife and son were in the United States and he would not have 

jeopardized his status in the United States by pleading guilty. Appellant does not 

otherwise address why he would not have pled guilty and insisted on going to trial. 

Considering the evidence put forth by appellant and for the reasons set forth below, 

we conclude appellant has failed to demonstrate that there is a reasonable 

probability that, assuming counsel committed error, he would not have pleaded 

guilty and would have insisted on going to trial. 

 The federal immigration statute pertinent to appellant's case is 8 U.S.C. § 

1227(a)(2)(B)(i). Title 8, Section 1227(a)(2)(B)(i), provides (in relevant part): 

Any alien who at any time after admission has been convicted of a violation 

of (or a conspiracy or attempt to violate) any law or regulation of a State, the 

United States, or a foreign country relating to a controlled substance (as 

defined in section 802 of Title 21),8

 other than a single offense involving 

possession for one's own use of 30 grams or less of marijuana, is deportable. 

 The language of the statute is clear regarding the types of substances and 

category of persons to whom it applies. Although the consequences of a conviction 

are clear for an alien who attains a qualifying conviction for a controlled substance 

(i.e., that person is "deportable"), as discussed below we find no reasonable 

 

7 Ginn factor one provides "if the facts alleged in the affidavit allege an error that 

would not result in relief even if any factual dispute were resolved in appellant's 

favor, the claim may be rejected on that basis." Ginn, 47 M.J. at 248. See also 

Tippit, 65 M.J. at 77. 

8

 The drugs distributed and possessed by appellant, as reflected on the charge sheet, 

qualify as "controlled substances" per 21 U.S.C. §§ 802 and are not otherwise 

excluded. 
VARGASPUENTES – ARMY 20091096 

8

probability that appellant would have changed his plea had he been informed of the 

potential deportation consequences of pleading guilty.9

 

 In contrast to appellant's unsupported allegations, the record of trial reflects 

that the evidence against appellant was compelling. Over an approximate three week 

time span, appellant distributed and sold various controlled substances. 

Specifically, on 26 January 2009, appellant sold five methadone pills to a Criminal 

Investigation Command (CID) "source" for $60.00. On 3 February 2009, appellant 

sold thirty methadone pills along with 0.11 grams of heroin for $380.00 to a CID 

"source" and undercover CID Drug Suppression Team (DST) agent. On 4 February 

2009, appellant sold .8 grams of heroin to an undercover DST agent for $360.00. On 

17 February 2009, appellant was in the process of selling thirty-nine pills of 

Oxycodone to an undercover DST agent when he was arrested by CID DST agents. 

When government agents searched appellant's vehicle incident to his apprehension, 

they found 0.3 grams of heroin in the vehicle. After being apprehended, appellant 

signed a written waiver of rights (DA Form 3881), agreed to speak, and subsequently 

rendered a written admission to some of the offenses (DA Form 2823). There are 

approximately fifty photographs incidental to appellant's attempted distribution of 

Oxycodone. For the charged offenses, appellant faced a potential sentence of a 

dishonorable discharge, fifty years confinement, reduction to Private (E-1), total 

forfeiture of pay, and a fine. 

 Appellant asserts he told CPT KH of his citizenship concerns during a pretrial 

session and on the day of his court-martial. Notwithstanding these claims, the 

record of trial reflects that while under oath on the day of trial, the appellant advised 

the military judge he had no questions about the meaning and effect of his guilty 

plea and he fully understood the terms of his pretrial agreement and how they 

affected his case.10 Appellant also told the military judge he was satisfied with the 

 

9

 In this regard, we note that for the purpose of prong one of Strickland, presuming 

that CPT KH was aware of appellant's citizenship, her obligation under Padilla was 

clear. Padilla, 130 S. Ct. at 1482. Counsel's obligation to investigate appellant's 

citizenship status, however, is fact-intensive. See Strickland, 466 U.S. 690-91. 

Because this opinion resolves the issue of ineffectiveness on prong two of 

Strickland, however, we do not substantively discuss prong one of Strickland. 

10 The military judge engaged appellant in a colloquy regarding, in effect, whether 

he was satisfied with and understood the terms of his pretrial agreement and was 

satisfied with his trial defense counsel. A colloquy between appellant and the 

military judge established the following: 

(continued . . .) 
VARGASPUENTES – ARMY 20091096 

9

advice of his counsel. Appellant's acknowledgments under oath that he did not have 

questions about his pretrial agreement, and his failure to raise to the military judge 

his concerns he had regarding pleading guilty, are significant to providing temporal 

information for this Court's analysis. 

 We further note that 8 U.S.C. § 1227(a)(2)(B)(ii), provides "[a]ny alien who 

is, or at any time after admission has been, a drug abuser or addict is deportable." 

The record of trial reflects that appellant states he became involved in drug 

distribution based on his own addiction to drugs and is also clear regarding 

appellant's own drug use and addiction. Thus, based on appellant's acknowledgment 

of drug abuse and addiction, appellant's risk of being "deportable" existed regardless 

of a conviction for controlled substances. The totality of appellant's situation is 

relevant when objectively considering the likelihood that he would not have pled 

guilty but for the (presumed) error of his counsel. 

 Based on the foregoing, we find that appellant has wholly failed to establish 

the prejudice required under Strickland in guilty plea cases and find there is no 

reasonable probability in this case that he would have changed his plea to the 

charged offenses and insisted on going to trial. See e.g., Hill, 474 U.S. at 60. 

 

(. . . continued) 

 Appellant acknowledged he entered into the pretrial agreement of his own free 

will and that no one tried to force him to make the pretrial agreement. 

 Appellant had no questions about his pretrial agreement. 

 Appellant acknowledged he fully understood all the terms of his pretrial 

agreement and how they affected his case. (emphasis added). 

 Appellant acknowledged he was pleading guilty because he was convinced he 

was in fact guilty and not just because he hoped to receive a lighter sentence. 

 Appellant acknowledged that he had had enough time to discuss the case with 

his defense counsel. 

 Appellant acknowledged he consulted fully with his defense counsel and 

received the full benefit of her advice. 

 Appellant acknowledged that [CPT KH's] advice was in his best interest. 

 Appellant acknowledged he was satisfied with [CPT KH] as his defense 

counsel. 

 Appellant acknowledged he was pleading guilty voluntarily and of his own 

free will. 

 Appellant had no questions about the meaning and effect of a plea of guilty. 

 Appellant fully understood the meaning and effect of his plea of guilty. 

 Appellant understood that even though he may be guilty, he had a legal and 

moral right to plead not guilty and place the burden on the government to 

prove his guilt beyond a reasonable doubt. 
VARGASPUENTES – ARMY 20091096 

10

CONCLUSION 

 We have considered the matters appellant raised pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be without merit. The 

findings of guilty and sentence are AFFIRMED. 

 

 Senior Judge CONN and Judge HOFFMAN concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: