UNITED STATES v. VALLEJO ZAMORA (2020)

SUMMARY ORDER

Defendant-Appellant Edio Vallejo-Zamora appeals from the judgment of conviction and sentence entered on December 21, 2018, in United States District Court for the Northern District of New York (D'Agostino, J.) after he pleaded guilty to possession with intent to distribute a controlled substance. Vallejo-Zamora argues that he received ineffective assistance of counsel when his attorney failed to seek an adjournment of his sentencing to after the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (2018) was signed into law.

When a defendant raises a claim of ineffective assistance of counsel on direct appeal, we may: “(1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary factfinding; or (3) decide the claim on the record before us.” United States v. Kimber, 777 F.3d 553, 562 (2d Cir. 2015) (internal quotation marks and citation omitted). Guided by the principle that “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance,” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), we exercise our discretion to decline to hear Vallejo-Zamora's claim. Accordingly, and without expressing any view on the merits of Vallejo-Zamora's claim, we permit Vallejo-Zamora to raise his ineffective assistance of counsel claim pursuant to 28 U.S.C. § 2255.

For the foregoing reasons, the judgment of the district court is AFFIRMED.