United States v. Gonzalez ( 1995 )

USCA1 Opinion

        November 8, 1995        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT











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        No. 95-1164



                              UNITED STATES OF AMERICA,



                                 Plaintiff, Appellee,



                                          v.



                                   ANDRES GONZALEZ,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                            FOR THE DISTRICT OF MAINE



                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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                                        Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
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            Andres Gonzalez on brief pro se.
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            Jay  P. McCloskey,  United States  Attorney, and  F. Mark Terison,
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        Assistant U.S. Attorney, on brief for appellee.





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                      Per  Curiam.    Andres  Gonzalez was  convicted  of
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            conspiring to  possess cocaine with intent  to distribute and



            was ultimately sentenced to serve 210 months in jail.  He now



            appeals  from the denial of his motion to vacate his sentence



            under 28 U.S.C.   2255.  We affirm.



                      Gonzalez claims  that the  district court  erred in



            sentencing him predicated  on a finding that his base offense



            level  should be  calculated on  15-49 kilograms  of cocaine,



            alleging  that  it  found  only  that  he  had  conspired  to



            distribute cocaine in excess of 10 kilograms.  He also claims



            that  his attorney rendered ineffective assistance of counsel



            by  failing  to object  to this  error  at sentencing  and on



            appeal.   The  sentencing transcript  shows clearly  that the



            court found that use of the 15-49 kilogram base offense level



            was proper  because Gonzalez  had conspired to  distribute in



            excess  of  15 kilograms  of  cocaine, and  we  affirmed that



            finding on appeal.  See United States  v. Moreno, 947 F.2d 7,
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            8-9 (1st  Cir. 1991).   The sentencing transcript  passage to



            which  Gonzalez refers  is either  a mistranscription  of the



            court's comments or an inadvertent misstatement by the court.



            Because Gonzalez's claim of error  by the court is meritless,



            so, too, is  the claim of  ineffective assistance of  counsel



            based on it.



                      Gonzalez  also   argues  that  the   court  had  no



            jurisdiction to sentence  him on amounts of cocaine he agreed







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            to provide  in negotiations with government  agents since his



            co-conspirator had not participated in those negotiations and



            had not agreed  to provide  such amounts.   He avers  further



            that  his attorney rendered ineffective assistance of counsel



            by  not arguing such lack of jurisdiction at sentencing or on



            direct appeal.   Because these  claims were not  presented to



            the district court, they are not before us and we decline  to



            consider them.  See United States v.  Ocasio-Rivera, 991 F.2d
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            1, 3 (1st Cir. 1993).



                      Affirmed.
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