APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Aida M. Delgado-Colón, U.S. District Judge.
Derege B. Demissie, with whom Demissie & Church was on brief, for appellant.
Susan Z. Jorgensen, Assistant United States Attorney, with whom Mainon A. Schwartz, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before Barron and Stahl, Circuit Judges, and Sorokin,[*] District Judge.
BARRON, Circuit Judge.
Wayne Vargas-De Jesús appeals the District Court's denial of his 28 U.S.C. § 2255 petition for post-conviction relief. Vargas contends that his petition should have been granted because his trial counsel provided ineffective assistance at sentencing in violation of the Sixth Amendment. We affirm.
Because we are considering a § 2255 petition, we recount the proceedings not only through conviction and sentencing, but also through Vargas's direct appeal. That way, we will have provided all of the background that is relevant to the issues that are now before us on post-conviction review.
We start with what happened at trial. In 2008, a jury found Vargas guilty of two counts of possession with intent to distribute a controlled substance within one thousand feet of a school, in violation of 21 U.S.C. § § 841(a)(1) and 860, and one count of conspiracy to do the same, see 21 U.S.C. § 846.
In rendering the verdict, the jury set forth findings about the drug quantity involved in each offense in a special verdict form. The jury found that one of the two substantive possession counts involved 50 grams or more of cocaine base and that the other involved 5 kilograms or more of cocaine. The jury also found that the conspiracy count involved at least 50 grams of cocaine base.
The probation officer then prepared the presentence report (" PSR" ). Apparently relying on the jury's findings in the special verdict form, the PSR recommended a base offense level of 32 under the United States Sentencing Guidelines based on drug quantities of 5 kilograms of cocaine and 50 grams of cocaine base. After applying various enhancements, and using a criminal history category of I, the PSR calculated a guideline sentencing range of 210 to 262 months' imprisonment.
Defense counsel did not object at the sentencing hearing to the PSR's drug quantity determination. The District Court adopted that determination, as well as the PSR's other recommendations. The District Court then imposed a sentence of 210 months' imprisonment on each of Vargas's three counts, with those sentences to be served concurrently.
Vargas appealed. He argued that the District Court did not have jurisdiction over the two substantive possession counts due to the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. § 5032. We agreed because the only evidence supporting those counts concerned conduct Vargas engaged in before he had reached the age of eighteen --the age of majority --and because the government had not certified that the case satisfied one of the enumerated conditions in the FJDA that would permit federal court jurisdiction over juvenile conduct. See United States v. Vargas-De Jesús, 618 F.3d 59, 61-65 (1st Cir. 2010).
At the same time, we rejected Vargas's argument that, under the FJDA, the District Court also lacked jurisdiction over the conspiracy count. Id. at 65. We reasoned that the government had supported the conspiracy count with evidence of conduct that Vargas engaged in not only before but also after he had turned eighteen. Id. at 65-66. And, citing our decision in United States v. Welch,15 F.3d 1202 (1st Cir. 1993), we held that a jury may consider evidence of a defendant's pre-majority conduct to establish the existence of a conspiracy so long as the defendant had " in some manner ratified his ...