United States v. Giancaterino

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20737
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WANDA T. GIANCATERINO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-599-1
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June 14, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges
PER CURIAM:*
Wanda Giancaterino appeals her jury conviction and sentence
for manufacturing, transferring, possessing, and concealing
counterfeit U.S. currency in violation of 18 U.S.C. §§ 471-73.
For the first time on direct appeal, she asserts that she
received ineffective assistance of counsel at trial.
The only argument Giancaterino has briefed concerns the
effect her counsel’s alleged ineffectiveness had on her sentence.
Direct appeal of her conviction is therefore waived. See Yohey

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No. 00-20737
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v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Fed. R. App. P.
28(a)(9).
We address the merits of Giancaterino’s ineffectiveness
argument, despite being raised for the first time on appeal,
because we find this to be one of the “rare” cases where the
record allows a fair evaluation of the claim’s merits. See
United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992);
United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987).
In order to establish ineffective assistance of counsel,
Giancaterino must show that (1) her counsel's performance was
deficient in that it fell below an objective standard of
reasonableness, and (2) the deficient performance prejudiced her
defense. Strickland v. Washington, 466 U.S. 668, 689-94 (1984)
Giancaterino fails to meet either requirement.
The record establishes that her counsel’s decision to
proceed to trial after the Government refused a conditional
guilty plea was a strategic judgment call. The record is devoid
of evidence to rebut the “strong presumption that counsel’s
conduct [fell] within the wide range of reasonable professional
assistance.” See id. at 689.
Giancaterino furthermore concedes, and the record supports,
that she cannot establish the requisite prejudice because it is
purely speculative whether the district court would have awarded
a two-level decrease for acceptance of responsibility under
U.S.S.G. § 3E1.1 had she pleaded guilty. See id. at 694.
(defendant must show to a reasonable probability that the result
of the proceeding would have been different). AFFIRMED.

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