United States v. Figueroa ( 1994 )

USCA1 Opinion

          June 10, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 93-2150

                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                                   THOMAS FIGUEROA,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                 [Hon. A. David Mazzone, Senior U.S. District Judge]
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                                        Before

                             Torruella, Selya and Boudin,
                                   Circuit Judges.
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            Thomas Figueroa on brief pro se.
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            Donald  K.  Stern,  United  States  Attorney,  and  Dina   Michael
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        Chaitowitz, Assistant United States Attorney, on brief for appellee.
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                 Per Curiam.   Thomas Figueroa  appeals pro  se from  the
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            denial of  his motion under 28  U.S.C.   2255  to vacate, set

            aside, or correct his sentence.  Following his conviction for

            conspiracy and  attempt to possess with  intent to distribute

            500 or  more grams of  cocaine, petitioner received  a prison

            term of  97  months.    This court  thereafter  affirmed  his

            conviction and his  sentence.  United States v. Figueroa, 976
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            F.2d  1446 (1st  Cir. 1992),  cert. denied,  113 S.  Ct. 1346
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            (1993).   Petitioner now raises three issues, two relating to

            his sentence and a third involving his underlying conviction.

                 He first  contends that  the  district court  improperly

            calculated  the   quantity  of  cocaine  for   which  he  was

            responsible  for purposes  of sentencing.   We  rejected this

            identical contention  on direct  appeal, see id.  at 1460-61,
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            and so  will not revisit the issue  here.  See, e.g., Barrett
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            v.  United States, 965 F.2d  1184, 1190 n.11  (1st Cir. 1992)
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            (issues decided on direct appeal  will not be reviewed  again

            by way of   2255 motion).  

                 Petitioner's  second claim involves the determination as

            to  his role in  the offense.  The  court reduced his offense

            level by  two levels  on the  ground  that he  was a  "minor"

            participant  under  U.S.S.G.     3B1.2(b).    Petitioner  now

            asserts that the court was  clearly erroneous in declining to

            impose a four-level reduction  under   3B1.2(a) for "minimal"

            participation,   or  alternatively   that  his   counsel  was



















            ineffective in failing to seek such a reduction.  He contends

            in  this regard that  his alcoholism was  so disabling during

            the relevant  period that he  was incapable of  anything more

            than  tangential  involvement  in  the conspiracy.    To  the

            contrary,  the  evidence  of  petitioner's  participation--as

            revealed especially  in two recorded  telephone conversations

            he  had  with  the  government  informant  and  as  otherwise

            described in our earlier opinion--demonstrates  that his role

            was  more considerable than he  suggests.  We  also note that

            counsel  did, in  fact, initially  propose that  a four-level

            reduction be  applied.  We find no clear error on the part of

            the  court, and  no substandard  performance on  the part  of

            counsel.

                 Petitioner's  final argument  is difficult  to decipher.

            To   the   extent   he   is   alleging   "sentencing   factor

            manipulation," see,  e.g., United States v.  Brewster, 1 F.3d
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            51, 55 (1st  Cir. 1993),  as the district  court assumed,  we

            reject  such claim  for  the reasons  recited  in the  recent

            appeal of a codefendant.   See Figueroa v. United  States, 19
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            F.3d 7, No. 93-2028, slip op. at 3-4 (1st Cir. 1994) (table).

            To  the extent  he  is alleging  governmental entrapment  (or

            ineffective assistance for failure to pursue such a defense),

            it  suffices  to note  that  the  record utterly  belies  any

            suggestion   of   "government   inducement"   or   "lack   of

            predisposition."  United  States v. Gifford, 17 F.3d 462, 468
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                                         -3-















            (1st Cir. 1994) (citing Jacobson v. United States, 112 S. Ct.
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            1535  (1992)).   Indeed,  the two  recorded conversations  by

            themselves  demonstrate that  petitioner  was anything  but a

            reluctant participant.   To  the  extent he  is arguing  that

            counsel improperly  dissuaded him from testifying, we observe

            that petitioner  personally disclaimed any interest  in doing

            so in response to inquiries from the court.  See, e.g.,  Lema
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            v.  United  States,  987  F.2d  48,  52-53  (1st  Cir.  1993)
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            (evidence that petitioner  "knowingly and voluntarily" waived

            right to testify defeated ineffective assistance claim).  And

            to the extent  he is seeking to vacate his  conviction due to

            newly discovered evidence, we reject the claim on the grounds

            that it was not advanced  below and is in any  event entirely

            conclusory.

                 Finally,   as  each   of   petitioner's  claims   (where

            possessing the requisite factual specificity) was  subject to

            refutation on the basis of the existing record, the court was

            justified in dismissing the petition without a hearing.  See,
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            e.g.,  United States v. McGill, 11 F.3d 223, 225-26 (1st Cir.
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            1993).

                 Affirmed.
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