# United Stat es Court of Appeals For the First C ircuit

No. 02-1155 UNITED STATES OF AMERICA, Appellee,

v. ELVY MARTINEZ-VARGAS, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Ernest C. Torres, U.S. District Judge ]

Before Selya, Circuit Judge , Coffin and Cyr, Senior Circuit Judges . Eileen F. Shapiro , by appointment of the court, on brief for appellant. Margaret E. Curran , United States Attorney, Donald C. Lockhart and Mary E. Rogers , Assistant United States Attorneys, on brief for appellee.

March 4, 20031 "José Correa" is an alias assum ed b y Domingo Martinez. For

simplicity's sake, we shall continue to refer to him by his pseudonym. -2-

SELYA, Circuit Judge . Defendant-appellant Elvy MartinezVargas pleaded guilty both to conspiring to possess with intent to distribute five kilograms or more of cocaine and to a related attempt count. See 21 U.S.C. §§ 841(a)(1), 846. He now appeals his sentence, arguing that the district court should have credited himfor a mitigating role in the offense of conviction and that his sentence was tainted by ineffective assistance of counsel. Concluding, as we do, that the first cla im is unavailing and the second unripe, we affirm the appellant's sentence.

We draw the relevant facts from the change-of-plea colloquy, the presentence investigation re port (PSI Report), the disposition hearing, and the documents of record. See United States v. Dietz , 950 F.2d 50, 51 (1st Cir. 1992).

The events giving ri se t o the appellant's arrest had their genesis in a call placed by a cooperating witness, functioning under the auspices of the Federal Bureau of Investigation, to the appellant's brother, José Correa. 1 The caller offered to bring five kilograms of cocaine from New York to Rhode Island. Correa agreed to purchase the contraband, and the parties arranged to consummate the transaction on July 16, 2001.

At the appoi nted time and place, an undercover officer posed as a drug courier. Correa and the appellant approached the-3-

officer's vehicle to take delivery of the drugs, and the trap snappedshut. A search of their minivan turned up $15,400 in cash. Asubsequent search of Correa's re side nce netted an additional $16,380 in cash.

On August 8, 2001, a federal grand jury indicted Correa andthe appellant. Both men initially proclaimedtheir innocence. On November 2, 2001, Correa changed his plea. As he is not a party to this appeal, we make no further reference to the proceedings against him.

The district court h ad sch eduled the case for trial on November 6, 2001. Rather than stand trial, the appellant decided to plead guilty. The court accepted his changed plea, continued the matter for sentencing, and commissionedthe preparation of the PSI Report. The court specifi cal ly advised the appellant that, when the PSI Report was ready, he would have a right to review it with counsel and to object to it. The court emphasized that any objections not lodged within 14 days after the PSI Report was made available would not be considered.

The probation department completed t he PS I Report on December 19, 2001. It suggested that t he court employ a base offense level of 32, see USSG §2D1.1(c)(4), and deduct two levels for acceptance of responsibility under USSG §3E1.1(a). Because the appellant apparently qualified for an additional two-level decrease under the so-called "safety valve" provis ion, s ee 18 U.S.C. §2 We expla inedin Ortiz-Santiago that "Congress enacted the

safety valve provision, 18 U.S.C. § 3553(f), in order to mitigate the harsh effect of mandatory minimum sentences o n cert ain first offenders who played supporting roles in drug-trafficking schemes." 211 F.3d at 150. The Sentencing Commission has incorporated the statutory text verbatim into the sentencing guidelines. See USSG §5C1.2 ; see also USSG §2D1.1(b)(6) (providing that if a drugoffender defendant meets the criteria set forth in section 5C1.2, the sentencing cour t s hall decrease his offense level by two levels). -4- 3553(f); see also UnitedStates v. Marquez , 280 F.3d 19, 21-22 (1st Cir. 2002); United States v. Ortiz-Santiago , 211 F.3d 146, 150-51 (1st Cir. 2000), 2 the PSI Report recommendedan adjusted offense level of 28. That offense level, together with a criminal history category of I — the appellant had no pr ior criminal record — yielded a guideline sentencing range of 78 to 97 months.

In response to the PSI Rep ort, the appellant proffered only a single objection. This objection focused on the drug quantity calculation used to determine his base offense level. He did not object either to (1) the use of a two-level adju stment , rather tha n a t hree-level adjustment, for acceptance of3 Adefendant who accepts responsibility for the offense of

conviction receives a basic two-level decrease in his offense level. See USSG §3E1.1(a); see also United States v. Royer , 895 F.2d28, 29 (1st Cir. 1990). Under certain circumstances, however, a defendant who qualifies fo r a tw o-level decrease under section 3E1.1(a) may receive an additional one-level decrease if he "timely notif[ies] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently." USSG § 3E1.1(b)(2). Here, the sentencing court gave the appellant the basic two-level reduction, but not the extra level. -5- responsibility, 3 or (2 ) the absence of a role-in-the-offense adjustment for minor participation.

The district court convened the di spos ition hearing on January 25, 2002. The court resolved the question of drug quantity against the appellant, and that question is not pursued on appeal. Defense counsel then raised, for the first time, the possibility of

a role-in-the-offense adjustment under USSG §3B1.2(b) (which provides that "[i]f the defendant was a minor participant in any criminal activit y," t he sentencing court should "decrease [his offense level] by 2 levels"). In belatedly broaching this subject, the lawyer conceded that he had not objected within the stipulated time frame and ascribedhis failure to "writer's block." The court responded: "If it wasn't raised . . . under the rule it is waived. The Court made that very clear at the time the plea was accepted." The court then added:

[I]t doesn't appear to me that there is a great deal of basis for [a role-in-the-offense reduction] here. According to the presentence report, Mr. Martinez was with the co-Defendant and both went to meet the agent and went back4 To be sure, the appellant, in objecting to the drug quantity

calculation, did state that he "was only there as a helper to the main player." But the appellant mentioned this datum only in connection with an unsuccessful effort to explain why he did not know the exact amount of drugs to be purchased. He never referred to the rol e-in-the-offense guideline, nor did he develop his -6- to the apartment and discussed purchasing 5 kilograms . Mr. Martinez was present at the time. I recognize what he said in his statement of acceptance [of responsibility] that he was just along for the ride, so to speak but I am not sure if he is prepared to testifyto that or not. In any event, it is too late to raise that objection. Following the imposition of a 78-month incarcerative sentence, Martinez-Vargas filed a notice of appeal. In it, he makes two points. First, he asseverates that the sentencing court erredin denying him a role -in- the-offense adjustment under USSG §3B1.2(b). Second, he maintains that ineffective assistance of counsel elongated his sentence because it deprived him not only of the aforementioned role- i n-the-offense adjustment but also of a plenary three-level reduction for acceptance of responsibility under USS G §3E1 .1. We deal with these contentions sequentially, usi ng t hroughout the November 2001 edition of the sentencing guidelines.

We need not tarry. Although the appellant criticizes the district court for failing to grant a two-level downward adjustment for his ostensibly minor role in the offense, he did not interpose a timely objection to the PSI Report on this basis. 4"helper" argument in any meaningful way.

5 Fed. R. Crim. P. 32(b)(6) was recodifiedas Fed. R. Crim. P. 32(f) by an amendment effective December 1, 2002. The substance is unchanged. For simpli cit y's sake, we use the designations that were in effect on the date of the appellant's sentencing. -7- In th e circ umstances of this case, the absence of a timelyobjection might well constitute a waiver. After all, the Criminal Rules provide that the probation department shall prepare the PSI Report and furnish it to the defendant, the defendant's counsel, and the prosecutor. See Fed. R. Crim. P. 32(b)(6)(A). Then, "within 14 days after receiving the presentence report," the part ies ar e to "communicate in writing to the probation officer, andto each other," all the objections that they may have to the "sentencing classifications" an d other matters "contained in or omittedfrom the prese ntence report." Fed. R. Crim. P. 32(b)(6)(B). Not later than seven days before the disposition hearing, the probation officer must give the district court and the parties a revised PSI Report, including an addendum setting forth anyunresolved sentencing objections. Fed. R. Crim. P. 32(b)(6)(C). Apart from any preserved objections, the sentencing court may "accept the presentence report as its findings of fact" without further inquiry or ela bor ation. Fed. R. Crim. P. 32(b)(6)(D). 5

In the District of Rhode Island, these provisions are reinforced by a local rule, which provides that:-8- Not less than 35 days prior to th e d ate set for sentencing, the probation officer shall disclose the presentence investigation report to the defendant andto counsel for the defendant and the government. Within 14 days thereafter, counsel shall communicate to the probation officer any objections they may have as to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted fromthe report. Such comm unication may be oral or written, but the probation officer may require that any oral objection be promptly confirmed in writing. D.R.I. R. 40.2(a). Further provisions in the local rules mirror the framework of the Federal Rules of Criminal Procedure. See , e.g. , D.R.I. R. 40.2(b)-(d).

The time limits embedded in these rules serve a threefold purpose: they promote focused and informedresolution of disputed sentencing issues, fairness for both the government and the defendant, and efficiency in judicial administration. Cf. United States v. López-López , 295 F.3d 165, 169 (1st Cir. 2002) (explaining that "time limits are no mere technicalities; they are integral to the f air and orderly process of imposing sentence"). Thus, a partywho decides to forgo a timely objection is in a poor position to complain when the sentencing court holds him to the easily foreseeable consequences of that decision.

Moreover, the district court was especially forthcoming in this instance. It called the applicable time parameters to the appellant's attention at the change-of-plea hearing, warned himno fewer than four times of the 14-day deadline, and spelled out the-9-

consequences attenda nt to noncompliance. The appellant was, therefore, on both actual and constructive notice that he must set forth his specific objections to the PSI Report within the allotted time or else forever hold his peace.

In the final analysis, however, we need not go so far as to declare what happened here a waiver. Even were we to assume, favorablyto the appellant, that this lapse constituted a forfeiture, rather than a waiver, that characterization would not leadto a different result. On appeal, forfeited issues are review edfo r plain error. United States v. Olano , 507 U.S. 725, 733-34 (1993); United States v. Rodriguez , 311 F.3d 435, 437 (1st Cir. 2002). Under the plain error standard, an appellant must demonstr ate: "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected [his] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." UnitedStates v. Duarte , 246 F.3d56 , 60 (1st Cir. 2001). The appellant cannot clear this hurdle. Role-in-the-offense determinations are almost always factbound. With respect to downward role-in-the-offense adjustmen ts, th e defendant bears the burden of proof. United States v. Ocasio , 914 F.2d330, 332-33 (1st Cir. 1990). Appellate review is highly deferential: the sentencing court's determination of a defendant's role is reviewed only for clear error. Id. at-10-

333. "Thus, absent a mistake of law, battles over a defendant's status . . . will almost always be won or lost in the district court." United States v. Graciani , 61 F.3d 70, 75 (1st Cir. 1995).

These principles are decisive here. Aminor participant is one "who is less culpable than most other participants, but whose role could not be described as minimal." USSG §3B1.2, cmt. (n.5). To obtain a reduction for minor participant status, a defendant must prove that he is both less culpable than most other persons involved in the offense of conviction and less culpable than most other persons convicted of comparable crimes. See OrtizSantiago , 211 F.3d at 149; Ocasio , 914 F.2d at 333; see also USSG §3B1.2, cmt. (n.5). The test is even more demanding on plain error review; the defendant must show, in effect, that the status for which he argues is "the only one rationally supported by the record bel ow." United States v. Olivier-Diaz , 13 F.3d 1, 5 (1st Ci r . 1993). The appellant's claim cannot pass through this screen.

There is no credible evidence in the record to suggest that the appellant was less culpable than the mine-run of felons involvedin similar crimes. To the contrary, he admitted during the change-of-plea colloquy that h e cons pired with Correa to buy five kilo grams of cocaine; that he intended to distribute the cocaine after it was acquired; and that he and Correa went together to the scene o f the planned transaction. His self-serving statement that he was only to receive $300 for his efforts is not6 The appellant argues that, in this case, the sentencing court

must have found good cause because it addressed the merits of the objecti on. This is whistling past the graveyard. The court, in what appears to have been an effort to assuage the lawyer's concern over not having raised the point in a timely fashion, merely noted the obvious weakness of the "minor participant" argument. To read the court's comments as the functional equivalent of a finding of good cause elevates hope over reason. -11- supp orted by anything in the record and conflicts with his admiss ions at the change-of-plea hearing. Given this mise-enscène, the appellant's status argument is not the "only one rationallysupported by the record below." Id. Hence, the sentencing court's failu re, su a sponte, to grant the appellant a role-in-the-offense reduction was not plainly erroneous.

In an effort to avoid the rigors of "plain error" review, the ap pel lant points out that the time parameters applicable to objections are not inflexible. The sentencing c ourt " [f]or good

ca use shown . . . may allow a new objection to be raisedat an y time before imposing sentence." Fed. R. Crim. P. 32(b)(6)(D). 6 But this escape hatch is not available to the appellant. A claim of "writer's block" hardly constitutes good cause. See generally Pontarelli v. S ton e , 930 F.2d 104, 110-11 (1st Cir. 1991) (distinguishing "good cause" fr om "excusable neglect" in an analogous context).

This leaves the appellant's ineffective assistance of counsel claim. In it, he surmises that, but f or his trial attorney's inept performance, he would have received both a role--12-

in-the-offense reduction under USSG §3B1.2 and a full three-level discount for acceptance of responsibility under USSG §3E1.1(a) and (b)(2), thus ensuring a lighter sentence. In his view, this circumstance warrants vacation of his sentence and a remand for a

new sentencing hearing. See Stricklandv. Washington , 46 6 U .S. 668, 694 (1984) (concluding that ineffective assistance of counsel

occurs when "there is a reasonable probabili ty that, but for counsel's unprofessional errors, the result of the proceeding would have been different").

We decline to entertain this plaint. The law is firmly settledin this circuit that, as a general rule, fact-specific claims of ineffective assistance of co unse l, not raised below, cannot be aired for the first time on direct appeal. See United States v. Mala , 7 F.3d 1058, 1063 (1st Cir. 1993) (collecting cases); United States v. Costa , 890 F.2d 480, 482-83 (1st Cir. 1989); United States v. Hoyos-Medina , 878 F.2d 21, 22 (1st Cir. 1989). Like most rules, this rule admits of certain exceptions. See , e.g. , U nitedStates v. Natanel , 938 F.2d 302, 309 (1st Cir. 1991). But those exceptions usual ly inv olve situations in which "the critical facts are not genuinely in dispute and the recordis sufficie ntly developed to allow a reasoned consideration of an ineffective assistance claim." Id. Here, however, the record is painfully thin, and further development of the facts is essential-13-

to a reasoned consid era tion of the appellant's contentions. In similar circumstances, we have declined to entertain ineffective assistance claims on direct appeal. See , e.g. , United States v. Nelson-Rodriguez , ___ F.3d, ___, ___ (1st Cir. 2003) [No. 00-1402, slip op. at 64]; United States v. Hunnewell , 891 F.2d 955, 956 (1st Cir. 1989). Adhering to that salutary practice here, we reject the appellant's ineffective assistance of counsel claim, without prejudice to his right, if he so elects, to assert that claim in the district court by means of an application for co lla teral relief. See 28 U.S.C. § 2255.

Affirmed .