Rojo Alvarez v. United States ( 1995 )

USCA1 Opinion

          March 31, 1995
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 94-1769 

                                 ALVARO ROJO-ALVAREZ,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                    [Hon. Gene Carter, Chief U.S. District Judge]
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                                        Before

                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Alvaro Rojo-Alvarez on brief pro se.
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            Jay  P. McCloskey,  United States  Attorney, and F.  Mark Terison,
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        Assistant United States Attorney, on brief for appellee.


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                      Per  Curiam.  Appellant Alvaro Rojo-Alvarez appeals
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            from  the denial of his  motion to vacate  his sentence filed

            under  28 U.S.C.   2255.   The motion  essentially raises two

            grounds for relief:   (1) government undercover agents posing

            as buyers  engaged in  "sentence entrapment" in  violation of

            appellant's due process rights  by requesting a larger amount

            of  drugs  (30 kilograms  of  cocaine)  than appellant  could

            produce; and (2)  counsel provided ineffective assistance  by

            not  raising  this  issue at  the  sentencing  hearing.   The

            district court  summarily dismissed  the motion on  the basis

            that the  drug quantity  question had been  presented to  the

            district court  at sentencing and  rejected by this  court on

            direct appeal.   See United States v.  Rojo-Alvarez, 944 F.2d
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            959 (1st Cir. 1991).  The district court also determined that

            counsel had  argued the entrapment defense  at the sentencing

            hearing.  We affirm the judgment of the district court.

                      1.  Sentencing Factor Manipulation.1
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                      Appellant argues  that he only had  the capacity to

            deliver  9 kilograms  of cocaine,  the amount  the conspiracy

            actually produced for the  fictitious buyers.  The government

            used  the 30-kilogram  figure, appellant  maintains, only  to





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            1.  Because the phrase  "sentence entrapment" is  misleading,
            this circuit uses the  term "sentencing factor manipulation."
            United  States v. Brewster, 1 F.3d 51, 55 n.5 (1st Cir. 1993)
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            (latter   phrase  correctly  puts  emphasis  on  governmental
            conduct rather than on a defendant's predisposition to commit
            the crime "but for" the government's inducement).















            raise his base offense level and, hence, his sentence.  There

            is no support in the record for this contention.  It is plain

            from the  uncontradicted trial testimony  that appellant  was

            not  only  aware, from  the  beginning,  that the  conspiracy

            involved  30 kilograms  of  cocaine but  also  was an  active

            participant in the negotiations for this amount.

                           When, as  now, an offense-level
                           enhancement   results  from   a
                           matter  that  formed  part  and
                           parcel    of    the    original
                           negotiations      between     a
                           government   agent    and   his
                           target,   and   the    criminal
                           venture proceeds on that basis,
                           a  claim  of sentencing  factor
                           manipulation will not lie.

            United States v. Brewster, 1 F.3d 51, 55 (1st Cir. 1993).  As
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            a  result  of  this   finding,  appellant's  claim  that  the

            government's  conduct violated due process necessarily fails.

            See United States v. Panitz, 907 F.2d 1267, 1272-73 (1st Cir.
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            1990) (conduct  must be so  shocking as to  be "fundamentally

            unfair" to amount to a violation of a defendant's due process

            rights).

                      Finally, to  the  extent that  appellant simply  is

            challenging the finding,  for sentencing guideline  purposes,

            that his  offense  involved 30  kilograms of  cocaine, he  is

            foreclosed  from  raising  this issue  in  a     2255 motion.

            First,  we   rejected  this  claim  on   direct  appeal  from

            appellant's conviction.  Rojo-Alvarez,  944 F.2d at 965, 971.
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            "Issues  disposed of on a  prior appeal will  not be reviewed


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            again by way of a 2255 motion."  Tracey v. United States, 739
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            F.2d  679, 682 (1st Cir.  1984), cert. denied,  469 U.S. 1109
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            (1985).   Second, alleged  errors in  the application  of the

            guidelines to the facts generally are not cognizable under   

            2255.  Knight v. United States, 37 F.3d 769, 773-74 (1st Cir.
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            1994).

                      2.  Ineffective Assistance of Counsel.
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                      Appellant claims that his attorney  failed to raise

            the issue of sentencing factor manipulation.  However, as the

            district  court noted,  counsel  specifically argued  at  the

            sentencing hearing  that  government  agents  should  not  be

            allowed  to choose a large  amount of drugs  when a defendant

            such  as appellant cannot produce  that amount.   Thus, it is

            plain  that  counsel's  conduct  was  more  than  objectively

            reasonable.    See Strickland  v.  Washington,  466 U.S.  668
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            (1984).  In  any event, because we decide that this issue has

            no merit, appellant cannot demonstrate prejudice.  Id.
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                      Affirmed.
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