APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.
Daniel N. Marx, with whom Robert E. Toone, Michele L. Adelman, Shrutih Ramlochan-Tewarie, and Foley Hoag LLP were on brief, for appellant.
Susan Z. Jorgensen, Assistant United States Attorney, with whom Rosa Emilia Rodrìguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before Lynch, Chief Judge, Torruella and Selya, Circuit Judges.
LYNCH, Chief Judge.
This is the rare case in which we find on direct appeal that there was ineffective assistance of defense counsel and so vacate a conviction and remand for further proceedings.
Defendant Cecilio Mercedes-De La Cruz appeals his conviction and sentence for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. Mercedes' primary argument as to his conviction, made under two doctrines, is that the government agents who arrested him lacked probable cause to do so. First, Mercedes contends that the failure of the district court to suppress incriminating statements that he made shortly after the arrest was plain error. Second, he argues that, in any event, the failure of his counsel to file a timely motion to suppress that evidence was a blatant display of ineffective assistance of counsel. Mercedes also challenges his sentence, arguing that the district court (1) improperly increased his sentence by making an unsupported finding that Mercedes was not truthful at his sentencing hearing and (2) erroneously failed to apply the safety valve under 18 U.S.C. § 3553(f).
We agree with Mercedes' ineffective assistance of counsel argument and need not reach the plain error issue, and so we vacate his conviction and remand for further proceedings. The record is sufficiently developed and the facts concerning the apparently unjustified arrest and counsel's failure to move to suppress are sufficiently egregious as to warrant relief. We also reach the issue of whether there was sentencing error, lest the error recur or have some lingering effect in the event of retrial.
On the evening of September 16, 2012, federal agents conducted surveillance of a remote stretch of miles of coastline in the southeast region of Puerto Rico suspected to be an area of drug trafficking activity. The region was known to be a common debarkation point for drug shipments. It is a mountainous rural region with a lot of brush.
Customs and Border Patrol Agent Luis Capestany was patrolling Puerto Rico State Road 901, which runs near the coast. He encountered a white van " in three different locations in [a] very small amount of driving distance," which he found suspicious. A vehicle registry check revealed that the van was registered to Jose Miguel Guzmá n-De los Santos.
Around 3:30 A.M., Capestany learned from his superiors that there was a boat traveling toward the coast with its lights out. A helicopter spied the vessel near a point on the coast called Punta Toro. Capestany continued patrolling and encountered a gold Hyundai station wagon with 19-inch nickel chrome rims at a point where Road 901 intersected with a road
going to the coast. The vehicle turned onto Road 901 and began driving northbound. Capestany found this suspicious in light of the time of night and the remote nature of the area. He ran the Hyundai's plates and discovered that they were registered to a Mazda.
Shortly afterward, Capestany saw three individuals run from the direction of the beach and " spe[e]d off" along Road 901 in a red two-door coupe. Capestany notified the other agents in the area ...