USA v. Luis Enrique Torres Gomez

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10589
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ENRIQUE TORRES GOMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00299-VMC-AAS-3
____________________
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2 Opinion of the Court 21-10589
Before JILL PRYOR, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
In this direct appeal, Luis Torres Gomez claims that he was
denied effective assistance of counsel at his sentencing hearing.
Specifically, he argues that his trial counsel was ineffective for fail-
ing to object to the district court’s use of untranslated Spanish-lan-
guage documents to determine his safety-valve eligibility at sen-
tencing.1
We decline to address his claim in this direct appeal and af-
firm Torres Gomez’s sentence. We generally do not consider
1 The government reads Torres Gomez’s brief on appeal as directly challeng-
ing the district court’s reliance on these documents. The government asserts
that this challenge is barred by the sentence appeal waiver in Torres Gomez’s
plea agreement. We do not read Torres Gomez’s brief as raising this distinct
challenge, but if we did, we would agree with the government that his appeal
waiver bars our consideration of it.
See United States v. Bushert, 997 F.2d 1343,
1350–51 (11th Cir. 1993) (holding that a sentence appeal waiver will be en-
forced if it was made knowingly and voluntarily);
United States v. Grinard-
Henry, 399 F.3d 1294, 1296–97 (11th Cir. 2005) (explaining that an appeal
waiver includes a waiver of “difficult or debatable legal issues or even blatant
error”).
By contrast, the government has not invoked the appeal waiver as to
Torres Gomez’s ineffective assistance of counsel claim. We therefore will not
sua sponte enforce the waiver as to this claim.
See Burgess v. United States,
874 F.3d 1292, 1299–1301 (11th Cir. 2017) (concluding that a district court
could not
sua sponte enforce a collateral-attack waiver in a plea agreement to
dismiss a § 2255 motion where the government did not raise the defense).
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21-10589 Opinion of the Court 3
claims of ineffective assistance of counsel raised on direct appeal
“where the district court did not entertain the claim nor develop a
factual record.”
United States v. Bender, 290 F.3d 1279, 1284 (11th
Cir. 2002). Even if the record includes some indication that an at-
torney’s performance was deficient, a 28 U.S.C. § 2255 motion is
the preferred means for deciding an ineffective-assistance-of-coun-
sel claim.
See United States v. Patterson, 595 F.3d 1324, 1328 (11th
Cir. 2010). A § 2255 hearing affords counsel whose performance is
at issue the opportunity to testify and explain whether “a seemingly
unusual or misguided action . . . had a sound strategic motive or
was taken because [the] alternatives were even worse.”
Massaro v.
United States, 538 U.S. 500, 505 (2003). Armed with that infor-
mation, a district court entertaining a § 2255 motion may reliably
judge the effect counsel’s allegedly deficient performance had on a
defendant’s case, whereas we, on an underdeveloped record,
would be left to speculate.
See United States v. Khoury, 901 F.2d
948, 969 (11th Cir. 1990) (holding that, absent further factual devel-
opment, we could not tell whether counsel’s conflict of interest had
an actual or merely speculative effect on defendant’s trial, and dis-
missing without prejudice to a § 2255 motion).
The record of Torres Gomez’s sentencing is insufficiently
developed for us to meaningfully review his claim that trial counsel
was ineffective. We cannot discern from the record why counsel
for Torres Gomez failed to object to the district court’s use of Span-
ish-language documents. And we decline to speculate about what
the effect an objection may have had on Torres Gomez’s
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4 Opinion of the Court 21-10589
sentencing proceedings. Those questions are better left to a district
court in a § 2255 proceeding.
See Massaro, 538 U.S. at 503, 505;
Khoury, 901 F.2d at 969. Thus, without prejudice to his ability to
bring an ineffective assistance of counsel claim in a § 2255 motion,
we affirm Torres Gomez’s sentence.
AFFIRMED.
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