## UNITED STATES ARMY COUR T 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 Theate r Sustainment Command Donna M. Wright, Military Judge
Colonel James W. He rring, Staff Judge Advocate (pretrial)
Colonel Lisa Anderson -Lloyd, Staff Judge A dvocate (post-trial)

For Appellant: Captain A. Jason Nef (a rgued); Colonel Mark Tellitocci, JA;
Lieutenant Colonel Matthew M. Miller, JA; Ma jor Grace M. Galla gher, JA; Captain A. Jason Nef, JA (on brie f in reconsideration); Major Grace M. Gallagher, JA; Captain A. Jason Nef, JA (on brief).

For Appellee: Captain Stephe n 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 reco nsideration); Major Lisa Gumbs, JA (on brief).

24 May 2011

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OPINION OF THE COUR T 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 di stribution of a contro lled substance (three specifications) and wron gful possession of a controlled substance, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 91 2a [hereinafter UCMJ]. The military judg e sentenced appellant to a bad-conduct discharge, confinement for two years, an d reduction to Priv ate (E-1). The co nvening authority
limited confinement to fiftee n 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 Arti cle 66(c), UCMJ. Appellant presented no specific assignmen t of errors to this Cour t, 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, al though 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 os tensible efforts to obtain United Stat es citizenship. Appellant submitted his Grostefon matters in the form of a typewritten, unsworn, unsigned document. In that document, a ppellant alleged he asked CPT KH during a pretrial meeting whet her the Immigration and Natura lization Service would find out about the charges ag ainst him, and she responded "it depends on how the courtmartial goes." 1 Appellant also asserts that on th e day of trial he again asked CPT KH about the impact of the ch arges on his efforts to beco me 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 Cour t's decision and submitted an affidavit in support. As discussed below, the affidavit alleged ineffective
assistance of counse l 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 su a sponte ordered re consideration of appellant's case and sua spont e 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 ineffec tive assistance of counsel claims in the context of guilty pleas by no n-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, nego tiations, etc.

2 This Court also denied th e attendant motion to attac h, although it expressly noted appellant could submit a requ est 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 elig ibility." Appellant states that CPT KH stated "it all depended on the outcome of [his] court-ma rtial." 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 sever ity of the charges [a nd that] she did not re member 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 an d 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 alle gations. In relevant part, CPT KH highlights her numerous pretrial meet ings (sixteen dates listed) with appell ant. Captain KH emphasizes that at no time du ring any of those pr etrial 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, ap pellant's focus was on "limiting his exposu re to extended confinement as a result of a conviction." Captain KH notes the "possi bility of extended jail time was the main factor in [appellant's] desire to plead guilty with the protection of a pret rial agreement." In so doing, CPT KH note s 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 whic h supports her c onclusion (e.g., a "source" cooperating with government agents and govern ment agents purchased the various drugs from appellan t and appellant's confession) . Captain KH avers that nothing in her discussions wi th appellant or his person nel records made her aware
that he was not a Un ited States citizen.

Captain KH also comments she had numerous post-trial contacts with appellant and (in effe ct) he did not inform her of his non-citizen status until after
several interactions and seve ral weeks. Captai n KH discusses her efforts to mitigate the impact of appellan t's conviction. In su pport of her claim th at she was not aware of appellant's non-United States citizen st atus until post-trial , CPT K.H. tenders a copy of a letter from appellan t'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 yo ur attention something that
makes this situation a little bit out-of-t he-ordinary.VARGASPUENTES – ARMY 20091096

4 Unfortunately, my husband is not a U.S. citizen. He had planned to apply for citizens hip while serving, but never got around to doing so. He also did not make his legal
counsel aware of this fact duri ng their pre-trial preparation meetings, and only made them aware after all was said and
done.

Captain KH plainly states that appellan t's "assertions that he asked me about the impact of his guilty pl ea on his citizenship status are not true. He never
informed me about his citize nship concerns at any time pr ior to pleading guilty."

Appellant requests this Court order relief in the form of setti ng aside the findings and sentence . In the alternative, appellan t 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 fo rces are entitl ed 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. Cons t. 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, ho wever, a reviewing court examining a claim of ineffective assist ance of counsel "mus t indulge a strong presumption that coun sel's conduct falls within the wide ra nge of reasonable professional assistance." Strickland v. Washington , 466 U.S. 66 8, 689 (1984).

In Strickland , the Supreme Court establishe d the now long -standing twopronged standard for analyz ing claims of ineffective assistance of counsel. Id . at 687. To overcome the presumption of compet ence, an appellant must establish: "(1) a deficiency in counsel's performance that is 'so se rious that counsel was not functioning as the 'c ounsel' guaranteed the defendant by the Sixth Amendment'; 3 and (2) that the 'deficient performance prejudiced the defense . . . [thr ough] 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 require s the examining court to determine whether a challenged counsel's performance "fel l below an objective standard of
reasonableness." Strickland , 466 U.S. at 688.

4 Under Strickland , the second prong requir es "a reasonable pr obability that, but for counsel's unprofessional er rors, 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 th e 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 ineffect ive assistance of counsel claims in the guilty plea context. Hill , 474 U.S. at 59-60. In Hill , the Court nevertheless provided interpretativ e guidance of the Strickland standard specifi c to guilty plea

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

The Supreme Court held th at the first prong of the Strickland test remains "nothing more than a restatement of th e standard of attorney competency" established by Supreme Court precedent. Id. In that regard, in Strickland the Supreme Court found that wh en analyzing the first pr ong (i.e., constitutional deficiency) in its two prong standard, "[t]he proper measure of attorney performance remains simply reasonable ness 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 modifi ed the second prong of
Strickland to "[focus] on whether counsel's co nstitutionally ineffe ctive 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 reasona ble probability that, but for counsel's errors, he would not have pleaded guilt y and would ha ve 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. Th e test is objective. Hill , 474
U.S. at 60

.

In Padilla v. Kentucky , the Supreme Court provided further interpretive guidance for analyzing ineff ective assistance of counsel claims in the context of guilty pleas when non-United States citizen defendants are at is sue. At issue in
Padilla was a claim of non-United States ci tizen (Padilla) that his counsel was ineffective in failing to advise him th at his guilty plea would have adverse immigration consequenc es. Notably, in Padilla , the Supreme Court reiterated that the first prong of Strickland was "constitutional deficien cy" 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 vi ew that counsel must advise her client regarding the risk of deport ation," although it is recogni zed 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 areVARGASPUENTES – 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, appe llant avers in two sepa rate 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 pl ea. Contrary to appellant's claims, CPT KH asserts that appe llant made no mention of his citizenship status prior to or on the day of trial and expressed no concer ns related to his citizenship. Captain KH notes that nothing in her discussions with appellant or his personnel records made he r 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 a llegations 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 conflictin g 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 base d on the facts of that case the relevant federal law regardi ng the "removal" consequences for petitioner Padilla's conviction was clear. __ U.S. __, 130 S. Ct. at 1483. Thus, coun sel's failure to provide correct advice to Padilla regarding the pres umptively mandatory deportation consequences of his guilty plea amounted to constitutio nally deficient advice under prevailing profes sional norms. Id. The issue of whether Padilla satisfied the second prong of Strickland (i.e., prejudice) was rema nded to the lower court. Id . at 1483-
84.

6 The record contains informat ion that is relevant to a ppellant's country of origin (e.g., Block IV, Enlisted Reco rd Brief and appellant's acknowledgment of his birth country in his DA Form 2823). The info rmation does not es tablish, however, appellant is not a United Stat es citizen, although it is potentially rele vant to the
issue of counsel 's duty to in vestigate. See Strickland , 466 U.S. 690-91. Because we
resolve this issue ba sed on prong two of Strickland , however, we do not substantively address this issue.VARGASPUENTES – ARMY 20091096

7 progeny. Thus, we may re solve 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 [] constituti onal deficiencies under the first prong of Strickland . . . [if] any such erro rs would not have been prejudicial under the high hurdle establishe d by the seco nd 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 hi s guilty plea on his citizenship status. See Hill , 474 U.S. 59-60. In support of his c ontention, appellant
stated that his wife and s on were in the United Stat es and he would not have jeopardized his status in the United Stat es 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 th e reasons set forth below, we conclude appellant has failed to demonstrate that there is a reasonable probability that, assuming co unsel committed erro r, he would not have pleaded guilty and would have insist ed on going to trial.

The federal immigration statute pertinen t to appellant's case is 8 U.S.C. § 1227(a)(2)(B)(i). Title 8, Section 1227(a)(2)(B)(i), pr ovides (in relevant part):

Any alien who at any time after admission has been convicte d of a violation of (or a conspiracy or attempt to violat e) any law or regula tion of a State, the United States, or a fore ign 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 ma rijuana, is deportable.

The language of the statute is clear regarding the types of substances and category of persons to whom it applies. Although the conseque nces of a conviction are clear for an alien who attains a qualif ying conviction for a controlled substance (i.e., that person is "dep ortable"), as discussed be low we find no reasonable

7 Ginn factor one provides "if the facts allege d in the affidavit allege an error that
would not result in relief ev en if any factual dispute were resolved in appellant's favor, the claim may be re jected on that basis." Ginn , 47 M.J. at 248. See also Tippit , 65 M.J. at 77.

8 The drugs distributed and po ssessed by appellant, as re flected on the charge sheet, qualify as "controlled su bstances" per 21 U.S.C. §§ 802 and are not otherwise
excluded.VARGASPUENTES – ARMY 20091096

8 probability that ap pellant would have chan ged his plea ha d he been info rmed of the potential deportation conseq uences of pleading guilty. 9

In contrast to appellant's unsupported allegati ons, the reco rd of trial reflects that the evidence against appellant was comp elling. Over an approximate three week time span, appellant distributed and so ld various controlled substances. Specifically, on 26 January 2009, appellant sold five me thadone pills to a Criminal Investigation Command (CID) "source" for $60.00. On 3 Februa ry 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 agen t for $360.00. On 17 February 2009, appellant was in the process of sell ing thirty-nine pills of Oxycodone to an undercover DST agent wh en he was arrested by CID DST agents. When government agents search ed appellant's vehicle incident to his apprehension, they found 0.3 gr ams of heroin in the vehicle. After being apprehended, appellant signed a written waiver of rights (DA Form 388 1), agreed to spea k, and subsequently
rendered a written admi ssion to some of th e 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 confin ement, reduction to Private (E-1), total forfeiture of pay, and a fine.

Appellant asserts he told CPT KH of his citizenship c oncerns 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 abou t the meaning and effe ct of his guilty plea and he fully und erstood the terms of his pret rial agreement and how they
affected his case. 10 Appellant also told the military judge he was sa tisfied 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 citizenshi p, 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 opini on resolves th e issue of ineffectiv eness on prong two of
Strickland , however, we do not substant ively discuss prong one of Strickland

.

10 The military judge engaged appellant in a co lloquy regard ing, in effect, whether
he was satisfied with and un derstood the terms of his pretrial agreement and was
satisfied with his trial de fense counsel. A colloquy between appellant and the military judge established the following:

(continued . . .)VARGASPUENTES – ARMY 20091096

9 advice of his counsel. Appe llant's acknowledgments under oath that he did not have questions about his pret rial agreement, and his failure to raise to the military judge his concerns he had regardi ng 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), pr ovides "[a]ny alien who is, or at any time after admi ssion 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 ad diction, appellan t's risk of being "deporta ble" existed regardless
of a conviction for co ntrolled substances. The totality of appellant's situation is relevant when objec tively 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 w holly failed to establish the prejudice required under Strickland in guilty plea cases and find there is no reasonable prob ability in this case th at he would have chan ged his plea to the charged offenses and insist ed on going to trial. See e.g.

, Hill , 474 U.S. at 60.

(. . . continued)

 Appellant acknowledged he en tered into the pr etrial agreement of his own free
will and that no on e tried to force him to make the pretrial agreement.

 Appellant had no qu estions 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 becaus e 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 bene fit of her advice.

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

 Appellant acknowledged he was satisfied with [C PT KH] as his defense
counsel.

 Appellant acknowledged he was pleading guilty volu ntarily and of his own
free will.

 Appellant had no qu estions about the me aning 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 gu ilty, he had a legal and moral right to plead not guilty and pl ace 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. 19 82) and find them to be without merit. The findings of guilty and sentence are AFFIRMED.

Senior Judge CONN an d Judge HOFFMAN concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: