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United States of America v. Noel Rosario-Colon

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Not for Publication in West’s Federal Reporter

Before Boudin, Stahl and Howard, Circuit Judges.

Defendant-appellant Noel Rosario-Colon pled guilty to aiding and abetting the impersonation of an officer of the United States in violation of 18 U.S.C. §§ 2 and 912 (count one), interference with commerce by threats or violence in violation of 18 U.S.C. §§ 2 and 1951 (count two), and carriage of a firearm during a crime of violence in violation of 18 U.S.C. §§ 2 and 924(c) (count three). The district court sentenced him to a term of twenty-four months’ imprisonment to be served consecutively to an undischarged sentence that he was then serving for a prior criminal conviction in case number 06-270 (JAG), which involved similar offenses. Rosario-Colon appeals on the ground that his counsel was ineffective in failing to argue that his term of imprisonment should run concurrently, rather than consecutively, to his undischarged sentence. We affirm the judgment below without prejudice to Rosario-Colon’s right to raise his claim of ineffective assistance of counsel on collateral review because a collateral proceeding brought under 28 U.S.C. § 2255, and not a direct appeal, is usually the proper vehicle for a claim of ineffective assistance of counsel, particularly when the evidentiary record is insufficient to evaluate the claim. See United States v. Garcia-Pastrana, 584 F.3d 351, 388 (1st Cir. 2009) (citing United States v. Genao, 281 F.3d 305, 313 (1st Cir. 2002)).

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