No. 18-1400

JEAN C. FERNANDEZ-GARAY,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges, and McElroy, District Judge.

Tim Bower Rodriguez on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.

April 30, 2021

 Of the District of Rhode Island, sitting by designation. MCELROY, District Judge. Habeas Petitioner Appellant Jean C. Fernandez-Garay ("Fernandez" or "petitioner") pled guilty to one count of possession of a firearm in connection with a drug trafficking crime and entered into a plea agreement with the government which included a sixty-month joint sentencing recommendation. The Presentence Investigation Report ("PSR") provided to the district court by the United States Probation Office included two accounts of Fernandez's violative conduct under 18 U.S.C. § 924(c)(1)(A). One account reflected the facts recited in the plea agreement ("plea version") and the second version included facts found by the probation officer ("probation version"). The difference between these versions concerns petitioner's alleged conduct in handling the firearm. Trial counsel for Fernandez made no objection to the probation version contained in the PSR before the sentencing hearing.

At sentencing, the district court imposed a 120-month sentence instead of the mandatory minimum sentence of sixty months that was recommended by both parties. Following a direct sentencing appeal in which this Court affirmed the 120-month sentence, Fernandez filed a petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence, asserting ineffective assistance of counsel for his attorney's failure to object to the discrepancy between the two versions of events

- 2 - contained in the PSR. The district court denied the relief sought and declined to issue a certificate of appealability, finding that our previous decision was "law of the case" and precluded Fernandez from relitigating the issue in the § 2255 petition. This Court granted a certificate of appealability as to petitioner's claim of ineffective assistance of counsel. Fernandez asks us to reverse the trial court and remand with instructions to vacate the sentence, to order a new PSR, and to hold a new sentencing hearing or, in the alternative, to remand the case for an evidentiary hearing.

For the following reasons, we affirm the denial of the petition but, as will become clear, we do so for a different reason than that given by the district court.

Background

In 2012, members of the Puerto Rico Police Department and Agents of the United States Department of Homeland Security arrested Fernandez and a grand jury indicted him for drug offenses and possession of a firearm. At the time of his arrest Fernandez was wearing a mask, carrying a backpack containing drugs and an

- 3 - extended magazine of bullets, and holding a gun, which he threw to the ground as he tried to evade police.1

In 2013, just before his trial was set to begin,