Cirilo-Munoz v. U.S.

• Decision Date: 15 April 2005
• Docket Number: No. 02-1846.,02-1846.
• Citation: 404 F.3d 527
• Court: U.S. Court of Appeals — First Circuit
• Parties: Ernesto CIRILO-MUÑOZ, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

404 F.3d 527

Ernesto CIRILO-MUÑOZ, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 02-1846.

United States Court of Appeals, First Circuit.

Heard November 8, 2004.

Decided April 15, 2005.

Elaine Pourinski for appellant.

Germán Rieckehoff, Assistant United States Attorney, with whom H.S. García, United States Attorney, and Sonia I. Torres-Pabón, Assistant United States Attorney, were on brief for appellee.

Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and FUSTÉ,^* District Judge.

BOUDIN, Chief Judge.

In 1995, Ernesto Cirilo-Muñoz ("Cirilo") was convicted of aiding and abetting, during the commission of a drug crime, the murder of an on-duty policeman. This court affirmed the conviction. United States v. Mangual-Corchado, 139 F.3d 34 (1st Cir.1998). Cirilo thereafter sought relief under 28 U.S.C. § 2255 (2000), which was denied by the district court, and now seeks review in this court, attacking his sentence based on ineffective assistance of counsel and under Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Our earlier opinion sets forth the facts in detail but, in substance, the following is what occurred. Jose Lugo-Sanchez ("Lugo"), Saul Mangual-Corchado ("Mangual") and David Silva worked regular shifts selling drugs outside Cafetin El Ideal — a retail shop where customers could also drink and play pool — in Trujillo Alto, Puerto Rico. Cirilo also frequented El Ideal and was said (by El Ideal's owner) to be "almost always" with Mangual and Lugo, although there was no evidence that he sold drugs.

Lugo correctly suspected that one drug customer — Agent Ivan Mejias-Hernandez ("Mejias") — was in fact an undercover police officer. In October 1994, one of Lugo's suppliers ordered Lugo to kill Mejias, and Lugo in turn told Luis Antonio Ramirez-Ynoa ("Ramirez") of his plan. On November 1, 1994, Mejias arrived at El Ideal between 10:00 a.m. and 11:00 a.m. driving a white Suzuki. At around 11:15 a.m., Lugo called Ramirez on the phone from El Ideal, telling him to drive to El Ideal and to bring "the revolver."¹ Ramirez arrived by 12:30 p.m. with a black Oldsmobile and a revolver.

Ten to fifteen minutes later, Cirilo arrived at El Ideal and was greeted by Lugo. Shortly thereafter, Lugo and Mejias walked to the stoop of a nearby building, where Lugo accused Mejias of being an informant. Silva and Ramirez arrived at the stoop, and Lugo walked back toward El Ideal, retrieving the revolver from the Oldsmobile and concealing it. Walking back toward El Ideal again, Lugo encountered Cirilo, Mangual and one Yito Morales, and tried unsuccessfully to incite them to "beat up" Mejias.

Then Lugo, with several others (possibly including Cirilo), returned to the stoop. There Lugo ordered Mejias at gunpoint to turn over the keys to the Suzuki. Ramirez and Mangual then searched the Suzuki and retrieved Mejias' gun. Cirilo was standing "real close to the car but not searching," just "looking"; his fingerprints were found on the Suzuki, although no evidence was presented as to when he touched the car.

Mejias, escorted by Lugo, then returned to the Suzuki from the stoop and retrieved his keys. Lugo told him to get into the car and "not to come around there anymore." However, as Mejias was about to leave, another man called "Papilin" told Lugo, "You have to take him or kill him because he might come back." There was no direct evidence that Cirilo heard this exchange, and the evidence was unclear as to where Cirilo was standing (or where Papilin and Lugo were standing) when this command was given.

Lugo then ordered Mejias into the Suzuki, and Mangual drove the Suzuki onto the highway with Mejias and Lugo in the back seat. Shortly thereafter, Lugo shot Mejias in the abdomen and in the head. Cirilo and Ramirez followed in the Oldsmobile, with Cirilo driving, although there was no evidence as to why. Lugo later testified that he had not told Cirilo about the planned murder and that he (Lugo) had not asked that Cirilo follow.²

The cars stopped at a cemetery. Whether Mejias was still alive is unclear but in any event Ramirez shot Mejias twice more in the head. The men then drove in the two cars to a quarry (during the drive Cirilo ingested cocaine provided by Lugo); the Suzuki (with Mejias' body in it) was pushed into the quarry. The men then left the quarry in the Oldsmobile driven by Cirilo. Lugo split the $240 he had taken from Mejias' wallet with the others. Cirilo finally drove Lugo home.

Mangual, Ramirez, Lugo and Cirilo were apprehended and, in September 1995, Cirilo was convicted after a jury trial in federal court of aiding and abetting the murder of an on-duty law-enforcement officer during the commission of a drug offense, 21 U.S.C. § 848(e)(1)(B) (2000); 18 U.S.C. § 2 (2000). On appeal, Cirilo argued that the evidence was insufficient to establish the aiding and abetting offense but, with one judge dissenting on this issue, the conviction was affirmed. Mangual, 139 F.3d at 44-49; id. at 49-56 (McAuliffe, J., dissenting in part).

At sentencing in January 1996, the district judge found that Mejias' killing was motivated by his status as a police officer, resulting in a three-level enhancement under the sentencing guidelines, U.S.S.G. § 3A1.2(a). This raised Cirilo's sentencing range from about 27 to 34 years, to required life imprisonment. At sentencing Cirilo's trial counsel objected to the enhancement, arguing that the government had not shown that Cirilo knew that Mejias was a police officer. The issue was not raised on appeal.

On September 29, 1999, Cirilo filed a petition for post-conviction relief under 28 U.S.C. § 2255 (2000),³ attacking his sentence in various respects. The district court denied the petition, concluding inter alia that the court at sentencing had correctly applied the enhancement and that the lawyer's failure to raise the issue on appeal did not violate Cirilo's constitutional rights. We granted a certificate of appealability, id. § 2253(c), directed to this claim and later broadened review to encompass a Sixth Amendment claim as well.

An ineffective assistance claim requires the defendant — who bears the burden of proof, Scarpa v. DuBois, 38 F.3d 1, 8-9 (1st Cir.1994) — to show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's failures, the outcome would likely have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cofske v. United States, 290 F.3d 437, 441 (1st Cir.2002). We review the district court's underlying factual findings for clear error, but review its ultimate legal conclusions de novo. Reyes-Vejerano v. United States, 276 F.3d 94, 97 (1st Cir.2002); Cody v. United States, 249 F.3d 47, 52 (1st Cir.2001).

Because counsel is entitled to exercise professional judgment, Cirilo must show that an attack on his sentencing enhancement on direct appeal "was so obvious and promising that no competent lawyer could have failed to pursue it." Arroyo v. United States, 195 F.3d 54, 55 (1st Cir.1999). We believe that test is met in this instance: the enhancement, which had a dramatic effect on the sentence, rested on very thin evidence and a possible misinterpretation of the jury verdict by the district court.

During the sentencing hearing, the judge asked (and was answered in the affirmative), "Didn't the jury find that this victim was killed ... because he was a police officer?" Later (during a discussion of a minor-participant adjustment), Cirilo's lawyer suggested that even though Cirilo followed in the Oldsmobile, "that doesn't mean that [Cirilo] knew that [Lugo] was going to kill and that [Mejias] was a police officer. He may have been surprised when — ". The court responded "that's what the jury decided."

If the district judge was referring to knowledge of Mejias' status, this is not what the jury had decided; the court's instructions to the jury stated that "[k]nowledge of the victim's status as a law enforcement officer is not necessarily an element of the offense." Although the jury was instructed that Cirilo needed to know that murder was intended, the jury was not required by the instruction to find that Cirilo knew that the victim was a police officer.⁴ The distinction between levels of knowledge is a fine one but it mattered to the particular enhancement.

Whether this possible misperception affected the district judge's ruling is unclear. In the sentencing hearing, the district judge did make a formal finding that Cirilo knew that the victim was a police officer when he (Cirilo) assisted in the venture. But there was no detailed discussion by the district judge of the evidence on which such a finding might rest. Ordinarily it is enough that sufficient evidence exist, but in this instance the evidence is thin and the basis for the inference drawn by the district judge is not apparent to us.

The conviction itself rested on fairly limited evidence of scienter, but an inference that Cirilo was involved in the plot could be drawn from Cirilo's presence at the scene of incitement and threat, his prints on the car, his otherwise unexplained pursuit of the Suzuki with a party to the plot, his presence when the victim was shot again and his sharing of the proceeds. Other contextual clues were the other perpetrators' willing acceptance of Cirilo's presence during the events leading up to Mejias' death, and evidence of Cirilo's indebtedness to Lugo's supplier which may have given Cirilo a motive to assist.

It is much harder, on what we can find in this record and without more explanation, to see why Cirilo should be taken to have known that the intended victim was a police officer.⁵ Cirilo's conduct and continued presence may be difficult to explain if he were not aware that Mejias would be killed; the panel that affirmed the...