Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-2131

UNITED STATES OF AMERICA,

Appellee,

v.

HARRY ARIZMENDI-SERRANO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Torruella, Lynch and Lipez,

Circuit Judges.

Anita Hill Adames on brief for appellant.

Nelson Pérez-Sosa, Assistant U.S. Attorney, Thomas F. Klumper,

Assistant U.S. Attorney, and Rosa E. Rodríguez-Vélez, United States

Attorney, on brief for appellee.

November 8, 2006
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Per Curiam. Harry Arizmendi-Serrano ("Arizmendi")

appeals from his drug-trafficking conviction on the sole ground

that he was deprived of his Sixth Amendment right to effective

assistance of counsel in connection with his guilty plea.

Specifically, he faults his trial counsel for erroneously

calculating his criminal history category and, on the basis of that

miscalculation, erroneously advising him that he would be eligible,

via the "safety valve," U.S.S.G. § 5C1.2, to receive a sentence

below the statutory mandatory 10-year minimum that would otherwise

apply to his offense. Because the existing record here is

sufficiently developed, we depart from our usual practice of

treating ineffective assistance of counsel claims raised for the

first time on direct appeal as premature and, instead, proceed to

consider Arizmendi's claim on its merits. United States v.

Natanel, 938 F.2d 302, 309 (1st Cir. 1991).

"The touchstone for any ineffective assistance of counsel

claim is the two-part test laid down by the Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984). First, the

defendant must show that counsel's performance was deficient. . . .

Second, the defendant must show that the deficient performance

prejudiced the defense." United States v. Colon-Torres, 382 F.3d

76, 85-86 (1st Cir. 2004) (quoting Hill v. Lockhart, 474 U.S. 52,

59 (1985)). In the context of guilty pleas, "'[t]he second, or

"prejudice," requirement . . . focuses on whether counsel's
See 21 U.S.C. §§ 841(b)(1)(A) (providing for a 20-year 1

mandatory minimum sentence if a person violates § 841(a) after a

prior conviction for a felony drug offense has become final);

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constitutionally ineffective performance affected the outcome of

the plea process.'" Id. at 86 (quoting Hill, 474 U.S. at 58-59).

To satisfy that second requirement, a defendant must "show 'a

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

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

Id. (quoting Hill, 474 U.S. at 59).

We need not determine whether the first requirement is

satisfied here because Arizmendi has clearly failed to satisfy the

second, prejudice requirement. Knight v. United States, 37 F.3d

769, 775 (1st Cir. 1994). He does not argue that, absent his

counsel's error about his criminal history, he would not have pled

guilty and would have insisted on going to trial. Cf. Colon-Torres

(finding serious indicia of prejudice where defendant "is now

adamant that he wants to have the trial option"). Rather, he

alleges merely that the error deprived him of "giving consideration

to exercising the constitutional right to a jury trial." However,

the record is clear that Arizmendi's last-minute decision to forgo

a jury trial was motivated not by his counsel's advice about his

eligibility for the safety valve but rather by the government's

stated intention, on the eve of trial, to file an information about

his prior conviction for a felony drug offense, which would have

doubled the length of his criminal sentence. Moreover, even after 1
851(a) (prohibiting such an increase in the mandatory minimum

unless, before trial or entry of a guilty plea, the United States

files an information stating the previous convictions relied upon).

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the presentence report found him ineligible for the safety valve

because he committed the instant offense while still on probation

for a prior offense, he made no attempt to vacate his guilty plea

as involuntary or unknowing.

The other form of prejudice that Arizmendi asserts--that

"he could have received a more lenient sentence"--is patently

nonexistent. The length of his sentence was driven by his prior

record and his refusal to cooperate, not by his counsel's advice.

Regardless of counsel's advice one way or the other, he was in fact

ineligible for the safety valve and would therefore have been

subject to, at least, the same ten-year sentence ultimately

imposed. Indeed, if he had gone to trial, and the government had

filed the intended information, his sentence would have, at least,

doubled in length.

Accordingly, we reject Azimendi's ineffective assistance

claim on its merits and affirm the judgment. See 1st Cir. R.

27(c).