United States v. Maldonado, 1st Cir. (1993)

USCA1 Opinion
April 28, 1993

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1761
UNITED STATES OF AMERICA,
Appellee,
v.
ALFREDO MALDONADO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________
Ralph J. Perrotta for appellant.

_________________
Margaret D. McGaughey, Assistant United States Attorney, w
______________________
whom Richard S. Cohen, United States Attorney, Jonathan R. Chapm
_________________
__________________
Assistant U.S. Attorney, and F. Mark Terison, Assistant U.S. Attorn
_______________
were on brief for appellee.
____________________
____________________
Per Curiam.
__________
on a
Appellant
Maldonado contends that his sentence
drug distribution charge
presented at his
prosecutor and
was tainted by
sentencing hearing.
false information
He claims
defense counsel should have
that both
the
brought the problems
to the attention of the sentencing judge, and their failure to do

so
constituted,
respectively,
ineffective assistance of counsel.

This case arises
the summer of
two
denial
due
from a drug conspiracy that
both
process
and
We affirm.
1990 through spring 1991,
other individuals,
of
of whom
extended from
involving Maldonado and

testified at
Maldonado's
sentencing hearing.
Their
testimony depicted Maldonado
organizer or supervisor of
the endeavor.
as the
They said he was
the
source of all the cocaine they sold and, at least for part of the
conspiracy period, he set the prices and controlled the proceeds.

The
two men also testified to the amounts of cocaine involved in
the
conspiracy, describing
both amounts
sold to
customers and
amounts delivered by or obtained through Maldonado.

The testimony on drug
and
at times was confusing.
however,
that
kilograms, the
32
amounts was not precisely consistent,
Maldonado
The district
was
responsible
lowest amount necessary to
under the Sentencing Guidelines.
testimony,
the
court
also
organizer or supervisor of
Maldonado to 121
found
for
at
least
five
trigger offense level
Based on the two witnesses'

that
the conspiracy.
months, the
court was satisfied,
Maldonado
The court
shortest possible
served
as
sentenced
term under
the
relevant guideline.
Maldonado identifies three factual

(1)
the
government
agreement with the
misrepresented
primary witness,
flaws in his sentencing:

the
nature
of
its
co-conspirator Lemieux,
plea
by
stating that Lemieux's culpability was limited to the quantity of

drugs known
at the time of his indictment; (2) the court was not
apprised that, contrary to his statements at the hearing, Lemieux

had done extensive
here;
and (3)
drug dealing before
the
court
also
did
the conspiracy at
not
know
that
issue
Lemieux's
testimony at the hearing about the number of cocaine customers he

could identify by
name differed from
earlier statements he
had
given to authorities.
Maldonado
district
asserts that
court to
the lawyers'
the true
circumstances may
court to overvalue Lemieux's

a higher sentence.
failure to
have
alert the
caused the
testimony and, therefore, to impose
Additionally, he criticizes defense counsel's
failure to impeach Lemieux's credibility on the quantity of drugs

dealt
during
prosecutor's
defense
the
conspiracy.
omissions
attorney's
representation by
Maldonado
denied
him
deficiencies
counsel.
claims
due process
deprived
him
Consequently, he
and
of
that
the
that
the
meaningful
maintains that his
sentence must be vacated.

This appeal is unavailing
it
relies
presented
in
substantial
to the
information about
for a number of reasons.
part
district court.
on
documents
Maldonado's
Lemieux's prior drug dealing
the sentencing hearing and that Lemieux testified

-3-
that
First,
were
not
contention that
was omitted from
inconsistently
about
his
knowledge
statements Lemieux
statements
of
customer
names
is
gave to authorities.
was made a
part of
based
None of
the record
on
prior
these unsworn
below.
Rather than
asking this court to consider these interviews for the first time
on
appeal,
Maldonado
attention of
should
have brought
the trial court, see

___
them
first
Eagle-Picher Industries, Inc.

_____________________________
v. Liberty Mutual Insurance Co., 682 F.2d 12, 22 &

____________________________
1982),
presumably in
the form
to the
of a
n.8 (1st Cir.
motion under
28 U.S.C.
2255.1
Were we to consider the interviews and rule on the merits of

his claims, Maldonado would fare no better.
evince
perjury
by Lemieux
district court's
Maldonado's
Maldonado
dealing
findings on
role.
The
the amount
testimony of
in
any other
way the
of drugs involved
Lemieux
highlighted
and
by
reasonably is understood not as a denial of prior drug
but simply as confirmation of the date the conspiracy at
issue began.
As
or undermine
The documents do not
for the
See
___
Transcript of Sentencing Hearing (Tr.)
customer
names,
year's
lapse
in
time
at 9.2
and
____________________
1 We recognize that Maldonado's appeal rests on the fact

that these documents were not presented to the district court.
To the extent the omission of the documents gives rise to a claim
of ineffective assistance of counsel, however, Maldonado is
obliged under longstanding precedent to present the claim first

to the district court. See infra at 5-7. The due process claim,
___ _____
relying as it does on the alleged deception of the district
court, strikes us as similarly inappropriate for initial review
by this court.
2 In fact, although the point was not developed, Lemieux was

asked by defense counsel whether he had been dealing drugs before
he became involved in this conspiracy. He answered "yes." See
___
Tr. at 27.
-4-
difference
in
the
questions
asked
account
for
the
slight
variations in Lemieux's statements.3

Second, Maldonado's attempt
juncture
over the
lacks substance.
nature
to create
of Lemieux's
Although the
controversy at
plea agreement
this
plainly
government's characterization of
the agreement was muddled, the district court focused on the very
point
about
between the
conspiracy
which Maldonado
amounts of
is
concerned
-- the
cocaine that Lemieux
discrepancy
attributed to
the
in his testimony and the much smaller amount on which
he was sentenced.
See Tr.
___
court
the
understood
sentence likely was
at 85-88.
prosecutor
We are confident that
to say
only
based on the amount of
government at the time he was sentenced.
that
the
Lemieux's
cocaine known to the
In any event, the court
had the agreement before it and was in no way deceived.
Third, the claim of ineffective assistance of counsel is not

properly
before
us
as
we
ordinarily
do
not
consider
complaints when raised for the first time on direct

United States v.
______________
Georgacarakos,
_____________
No. 92-1890,
(March 30, 1993);
United States v. McGill, 952 F.2d

_____________
______
appeal.
slip
op. at
such
See
___
18
16, 19 (1st
Cir. 1991).
This is not the "exotic exception" to the rule, see

___
McGill,
______
F.2d
952
developed to
appeals
court
at
19,
where
allow reasoned
in the
the
record
consideration of
first instance.
is
sufficiently
the claim by
Indeed, this
the
claim is
____________________
3 This case does not involve allegations of either delayed

disclosure
or nondisclosure
of Lemieux's
statements, and
Maldonado's reliance on United States v. Osorio, 929 F.2d 753,
_____________
______
758 (1st Cir. 1991) and United States v. Perkins, 926 F.2d 1271,
_____________
_______
1275 (1st Cir. 1991), is therefore misplaced.
-5-
particularly suited
to resolution by the
its
that
gist
is
that
court
was
led
district court because

astray
by
counsel's
performance.
Once
again, even if review
no constitutional error.
were appropriate, we would find
During cross-examination, trial counsel
appropriately focused on Lemieux's testimony regarding the amount

of cocaine and Maldonado's role in the conspiracy.
fact, acknowledges
crucial
that the attorney reasonably
..").
See Brief at 14
___
But he goes on
statements
to
to argue that a
The decision
valid . .
more direct challenge to
have been made based on the witness's
authorities.
arguably lend support to

amounts.4
most favorable to his client . .
("These arguments were certainly
Lemieux's testimony should

prior
"dealt with the
issue of quantity by accepting the veracity of that part
of Lemieux's testimony . . .
."
Maldonado, in
Those
statements, however,
the government's calculation of cocaine

not
to utilize
them
therefore would
____________________
4 Our computations show that the grand jury testimony and

reports filed by two agents for the Bureau of Intergovernmental
Drug Enforcement supported substantially more than the minimum of
five kilograms of cocaine found by the district court.
Maldonado relies in particular on Lemieux's statement to
Agent Kelly that Maldonado delivered 1/2 to 1 pound of cocaine
every two weeks for about 32 weeks. See App. at 9. Using the
___
smaller estimate, Maldonado asserts that this produces only about
3.6 kilograms, and that this amount is far less than the lowest
quantity to which Lemieux testified at the hearing. But in so
arguing, Maldonado is reading Kelly's memorandum selectively.
The document also reports Lemieux's statement that he made trips
to Providence and New York to pick up approximately 4 additional
kilograms from Maldonado. See App. at 9-10.
___
Maldonado also points to Lemieux's statements to Agents
Kelly and Small concerning a hiatus in drug dealing in early
1991, contending that the Small report describes a four-month
period from January through April while the Kelly report notes an
approximately two-month break.
We do not read the memoranda as
-6-
indicate sound strategy.

60, 65 (1st
Cir. 1992)
F.2d 1184,
1193 & n.18
deficient
See Isabel v. United States,

___ ______
_____________
(quoting Barrett v.
_______
(1st Cir. 1992))
professional performance
980 F.2d
United States,
_____________
("[W]e may not
in the
965
find a
constitutional sense
unless the challenged decisions were not `plausible options.'").

The other
document upon which Maldonado's claims rest is an
Immigration and Naturalization

detailing Lemieux's prior
of
sentencing,
the
Service investigative
drug dealing activities.
district
court knew
that
memorandum
At
the time
Lemieux
was
convicted drug dealer testifying as part of a plea agreement with

the
government.
We fail
to see how
the peripheral information
that Lemieux also had dealt drugs independently in the past could
have affected materially the district court's fact-finding on the

amount
of
Maldonado
falls far
reasonable
errors,
cocaine
and
Maldonado's role
short
probability
in
of demonstrating
that, but
for
the
that
conspiracy.5
"there is
counsel's unprofessional
the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 694 (1984).

__________
__________
Finally,
attempt
we note that, at bottom, this appeal is a creative
to challenge
as a
matter of
law the
district court's
unassailable factual findings that Maldonado was the leader
of a
____________________
necessarily inconsistent.
Small's report describes the time
frame as "between the months of January 1991 to the beginning of
April 1991," see App. at 4 -- which plainly excludes the month of
___
April and thus could be read to mean only the two months between
_______
January and April.
5 Moreover,
dealing.
as previously noted, Lemieux
did admit earlier
-7-
conspiracy involving the distribution

of cocaine.
In
our view, Maldonado received fair
was represented by competent

is unchallengeable.
Affirmed.
________
of at least five kilograms
counsel.
treatment and
Accordingly, his sentence
-8-

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USCA1 Opinion

April 28, 1993

Ralph J. Perrotta for appellant.

Maldonado contends that his sentence

drug distribution charge

defense counsel should have

brought the problems

to the attention of the sentencing judge, and their failure to do

ineffective assistance of counsel.

from a drug conspiracy that

1990 through spring 1991,

involving Maldonado and

testimony depicted Maldonado

They said he was

conspiracy period, he set the prices and controlled the proceeds.

two men also testified to the amounts of cocaine involved in

amounts delivered by or obtained through Maldonado.

at times was confusing.

amounts was not precisely consistent,

lowest amount necessary to

under the Sentencing Guidelines.

trigger offense level

Based on the two witnesses'

court was satisfied,

Maldonado identifies three factual

agreement with the

flaws in his sentencing:

stating that Lemieux's culpability was limited to the quantity of

at the time of his indictment; (2) the court was not

apprised that, contrary to his statements at the hearing, Lemieux

drug dealing before

testimony at the hearing about the number of cocaine customers he

name differed from

court to overvalue Lemieux's

testimony and, therefore, to impose

Additionally, he criticizes defense counsel's

failure to impeach Lemieux's credibility on the quantity of drugs

maintains that his

sentence must be vacated.

for a number of reasons.

Lemieux's prior drug dealing

the sentencing hearing and that Lemieux testified

was omitted from

the trial court, see

Eagle-Picher Industries, Inc.

v. Liberty Mutual Insurance Co., 682 F.2d 12, 22 &

n.8 (1st Cir.

Were we to consider the interviews and rule on the merits of

reasonably is understood not as a denial of prior drug

but simply as confirmation of the date the conspiracy at

The documents do not

Transcript of Sentencing Hearing (Tr.)

1 We recognize that Maldonado's appeal rests on the fact

obliged under longstanding precedent to present the claim first

2 In fact, although the point was not developed, Lemieux was

variations in Lemieux's statements.3

cocaine that Lemieux

in his testimony and the much smaller amount on which

sentence likely was