Flaquer v. United States

SUMMARY ORDER Petitioner-Appellant Miguel Flaquer, proceeding pro se, appeals from the judgment denying his 28 U.S.C. § 2255 motion. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Flaquer argues that the district court erred by denying his claim that his counsel provided ineffective assistance at sentencing when she failed to call co-defendant, Luis Naboa, to challenge the imposition of a leadership role enhancement. Flaquer argues that the district court would not have imposed a role enhancement because Noboa would have testified that he did not know Flaquer well and that he was not Flaquer’s driver for purposes of the conspiracy. On direct appeal from his conviction, Flaquer argued, inter alia, that he was “not a leader, organizer, manager, or supervisor” and that a role enhancement should not have been imposed. See Unit *36 ed States v. Flaquer, 361 Fed.Appx. 222 (2d Cir.2010). We concluded that the district court did not err in applying a two-point role enhancement and that the sentence imposed was not an abuse of discretion. Id. Because we have already held that the imposition of the role enhancement was proper based on the facts considered at sentencing, we have impliedly considered and rejected Flaquer’s ineffective assistance claim. See Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010). We will not disturb that conclusion, and the district court properly concluded that Flaquer’s claim was barred. Assuming, arguendo, that Flaquer’s claim is not entirely barred, it is nonetheless without merit. After a searching review of the record, we conclude that the government proved the applicability of the role enhancement by a preponderance of the evidence, and Flaquer has failed to persuade us that the decision not to call Noboa to testify was prejudicial, even if professionally unreasonable. See Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also United States v. Ojeikere, 545 F.3d 220, 222 (2d Cir.2008). Accordingly, it is hereby ORDERED that the district court’s judgment, entered on October 23, 2012, is AFFIRMED.