Matthew D. West v. U.S.

• Decision Date: 26 January 2011
• Docket Number: No. 09–2132.,09–2132.
• Citation: 631 F.3d 563
• Parties: Matthew D. WEST, Petitioner, Appellant,v.UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

631 F.3d 563

Matthew D. WEST, Petitioner, Appellant,

v.UNITED STATES of America, Respondent, Appellee.

No. 09–2132.

United States Court of Appeals, First Circuit.

Heard Oct. 5, 2010.Decided Jan. 26, 2011.

John P. Slattery, with whom Ronald A. Wysocki Attorney At Law, Inc. was on brief, for appellant.Cynthia A. Young, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.Before LYNCH, Chief Judge, LIPEZ, Circuit Judge, and WOODCOCK, ^* District Judge.WOODCOCK, District Judge.

Defendant-appellant Matthew West appeals from his conviction of two counts of intent to distribute and distribution of cocaine and his subsequent sentence as a career criminal to 180 months incarceration followed by 10 years of supervised release. West's appeal is based upon claims of ineffective assistance of counsel, abuse of discretion in continuing the sentencing hearing, sentencing factor manipulation, and an unreasonable sentence. We affirm.

I. FACTS

In 2005, the Boston Police Department (BPD) and the Federal Bureau of Investigation (FBI) investigated suspected criminal activity by BPD Officer Robert Pulido, including identity theft, theft of gift cards, the purchase and sale of illegal steroids, and the co-hosting with West of illegal parties at 24 Factory Street in Boston. The FBI believed the parties involved an unlicensed strip club, the unlicensed sale of alcohol, prostitution, and illegal drug trafficking.

As part of their investigation, the FBI directed cooperating witness Troy Lozano to befriend West. The two had met in June 2005 when West offered to assist Pulido and Lozano with their identity theft operation. In November 2005, the FBI asked Lozano to speak to West about the parties and to ask him about procuring “party favors”—cocaine—supposedly for Lozano's cousins who planned to attend one of the parties. West initially thought Lozano was requesting prostitutes, but when Lozano stated “the other favors,” West responded, “Powders?” West then offered to “network” the request and gave a price of $125 for an eight-ball (3.5 grams) of cocaine, saying that “some people will ask for 150, but ... he's giving them to me for 125 apiece.” Lozano later purchased two eight-balls from West for $250. Several weeks later, again at the direction of the FBI, Lozano asked to purchase four eight-balls, which West eventually sold to him for $500.

In September 2006, West was indicted for two counts of possession with intent to distribute and distribution of cocaine, a violation of 21 U.S.C. § 841(a). Before trial, the government notified West that, if West asserted an entrapment defense, the government would put forth evidence of his prior felony drug convictions: 1989 convictions in Cambridge, Massachusetts for possession of a Class B and a Class D substance with intent to distribute; and 1992 Virginia convictions on two counts of felony distribution of cocaine.

After a jury trial, during which the entrapment defense was not raised, West was found guilty on both counts. In its initial presentence report, the Probation Office classified West as a career offender by virtue of his 1992 Virginia convictions and a 2001 conviction in Roxbury, Massachusetts for assault and battery. A sentencing hearing was scheduled for September 24, 2007. On September 19, however, West moved in the Commonwealth of Massachusetts district court to vacate the 2001 conviction for assault and battery. The motion was heard the morning of September 24 and granted the same day, leaving only the 1992 convictions to stand at West's federal sentencing, rendering career offender status inapplicable. With this change, the federal sentencing guidelines sentence dropped to 12 to 18 months from the 262 to 327 months for a career offender.

Just before the sentencing hearing, the government and the district court learned about the vacated conviction. Based on late notice, the government requested a continuance and the trial court granted its motion, rescheduling the sentencing hearing for October 10. In the interim, the government petitioned the Massachusetts Supreme Judicial Court to vacate the order vacating the 2001 conviction. Before the Supreme Judicial Court responded, the state district court judge, sua sponte, vacated her order and restored West's 2001 conviction.

At his October 10 sentencing hearing, West and the government agreed that the sentencing guidelines classified West—his 2001 conviction restored—as a career offender, and the guideline sentence returned to 262 to 327 months imprisonment. The district court sentenced West to 180 months imprisonment and 10 years supervised release. In so doing, the district judge observed that, although selling drugs was not West's primary business, he was a career offender. In a subsequent sentencing memorandum, the trial judge characterized West as a “small-time hoodlum,” but noted his involvement in “after-hours parties with drugs,” which he described as a “veritable beehive of criminal activity,” and “rife with prostitution.”

II. DISCUSSION

West raises four issues on appeal: (1) ineffective assistance of counsel, (2) continuation of West's sentencing hearing, (3) sentencing factor manipulation, and (4) imposition of an unreasonable sentence.

A. Standard of Review

After his conviction and sentencing, West directed his trial counsel to file an appeal under 18 U.S.C. § 3742. Despite West's repeated urgings, West's counsel missed the appeal deadline provided by Federal Rule of Appellate Procedure 4(b). West later moved pro se for leave to file an untimely appeal. After initially denying the motion without prejudice, the trial court later purported to grant West's motion upon learning about West's counsel's failure, and West filed a direct appeal within the newly specified appeal period. We dismissed West's direct appeal as untimely and directed West to his remedies under 28 U.S.C. § 2255. West filed the § 2255 petition with the district court, which denied his motion. West appeals that denial.

The rather unusual travel of this case could present a procedural tangle, but at oral argument, the government sensibly waived any objection to our consideration of all of West's issues as though on direct appeal, regardless of how they actually arrived here. This seems to us appropriate, especially since parsing through varying standards of review and differentiating between waived and preserved issues would make no difference; the result by any reckoning is the same.

B. Ineffective Assistance of Counsel

West's claim of ineffective assistance of counsel is based on his trial lawyer's refusal to accede to his demand to raise the entrapment defense during his trial and his counsel's failure to timely file an appeal of his conviction and sentence. Claimed violations of the Sixth Amendment right to effective representation of counsel require a showing that (1) counsel's performance fell below an objective standard of reasonableness, and (2) the deficient performance resulted in prejudice to the applicant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Peralta v. United States, 597 F.3d 74, 79 (1st Cir.2010).

As we recently observed, in Strickland, the Supreme Court directed the courts to indulge a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and [the defendant] must overcome the presumption that the challenged action might be considered sound strategy.” Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir.2010) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052) (internal punctuation and citation omitted). A lawyer's representation is deficient under Strickland “only where, given the facts known at the time, counsel's choice was so patently unreasonable that no competent attorney would have made it.” Id. (quoting Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.2006)). West cites two instances of prejudicial ineffective assistance of counsel: first, that his trial counsel failed or refused to present an entrapment defense; and second, that his trial counsel failed to file a timely appeal of his conviction and sentence.

Reviewing West's counsel's performance in light of Strickland and its progeny, this court cannot conclude that his decision not to pursue an entrapment defense was patently unreasonable. A successful entrapment defense requires proof by the defendant of two elements: “(1) government inducement of the accused to engage in criminal conduct, and (2) the accused's lack of predisposition to engage in such conduct.” United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir.1988). On this second prong, had West's counsel offered an entrapment defense, the government would likely have responded by seeking to demonstrate West's predisposition to sell drugs by introducing his 1989 convictions for possession of cocaine and of marijuana with intent to distribute, and his 1992 conviction on two counts of cocaine distribution.

The introduction of such damaging evidence would have undercut West's entrapment defense. West's prior convictions related not only to selling illegal drugs generally but also to the specific type of drug in this case—cocaine. West's own actions further doomed an entrapment defense; when asked by Lozano for “party favors,” West quickly surmised that he meant cocaine, and he displayed a ready knowledge of current cocaine pricing, stating “some people will ask for 150, but ... he's giving them to me for 125 apiece.” The present-tense allusion to West's drug supplier suggested an ongoing relationship and provided an additional challenge to West's claim that his drug procurement was a government-induced, one-time event. This evidence, viewed in its totality, supports West's counsel's repeatedly stated belief in the ineffectiveness of an entrapment defense.

Defense counsel, faced with difficult strategic choices, struck a middle path: he avoided an entrapment...