UNITED STATES v. Armando Moronta, Alicia Alonso, Jorge Arias aka Boyuco, Defendants. (2021)

SUMMARY ORDER

Defendant-Appellant David Vargas (“Vargas”) appeals from a judgment of conviction entered on May 17, 2019. Vargas pleaded guilty to one count of a narcotics trafficking conspiracy, in violation of 21 U.S.C. § 846. He was then sentenced principally to a within Guidelines sentence of 160 months’ imprisonment. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

On appeal, Vargas argues for the first time that he was denied effective assistance of counsel when his lawyer failed to object to a factual error by the District Court at sentencing.¹ “This court is generally disinclined to resolve ineffective assistance claims on direct review.” United States v. Gaskin, 364 F.3d 438, 467 (2d Cir. 2004). Still, we have “entertained ineffective assistance claims for the first time on direct appeal when their resolution is beyond any doubt or to do so would be in the interest of justice.” United States v. Khedr, 343 F.3d 96, 100 (2d Cir. 2003) (internal quotation marks omitted). To prevail on an ineffective assistance claim, a defendant must show that his counsel's performance “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Specifically, Vargas argues that the District Court erred by holding Vargas accountable for “corrupting” a federal correctional officer, Armando Moronta, when Moronta's participation in the narcotics trafficking conspiracy predated Vargas’ joining the conspiracy. We disagree. Our review of the record reveals no such factual error. Nowhere does the District Court suggest that Vargas turned Moronta or was responsible for bringing him into the conspiracy. Instead, the District Court observed that it was “trouble[d]” by “the corruption end of this.” App'x at 103. In other words, “[t]his was all done because you and your co-conspirators paid bribes to Moronta to bring this stuff in, and that is something that sets this drug conspiracy apart from all of the others, and from the typical conspiracy.” Id. Accordingly, we cannot say that Vargas was denied effective assistance of counsel. There was no factual error so it was not unreasonable for Vargas’ counsel not to object.

CONCLUSION

We have reviewed all of the arguments raised by Vargas on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the May 17, 2019 judgment of conviction of the District Court.

FOOTNOTES

1.   In his brief filed on July 7, 2020 Vargas also challenged his sentence based on his career offender designation, but on November 16, 2020 we granted the government's motion to dismiss this portion of Vargas’ argument, which Vargas had waived in his plea agreement. Accordingly, we consider only his ineffective assistance of counsel claim on appeal.