United States v. Martinez Mejia ( 1994 )

March 27, 1995
[NOT FOR PUBLICATION]
UNITED STATE COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1302
UNITED STATES,
Appellee,
v.
PORFILIO MARTINEZ MEJIA,
Petitioner, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
J. Michael McGuinness, McGuinness & Parlagreco on brief for
appellant.
Sheldon Whitehouse, United States Attorney, Margaret E. Curran
and Zechariah Chafee, Assistant United States Attorneys, on brief for
appellee.
Per Curiam. Appellant Porfilio Martinez-Mejia appeals
the denial by the United States District Court for the
District of Rhode Island of his pro se "motion to correct
presentence investigation report." Since this motion was
filed after the time for a direct appeal had expired, we
treat the motion as one pursuant to 28 U.S.C. 2255.
Martinez-Mejia, now represented by counsel, raises three
issues. First, he asserts certain factual "inaccuracies" in
the presentence report [PSR]. Second, he claims that the
district court erred in accepting the recommendation of the
PSR and denying him a two level reduction for acceptance of
responsibility. Finally, he notes that the PSR states that
he was convicted of conspiracy to possess with intent to
distribute more than 500 grams of cocaine, whereas the
judgment lists the offense as possession with intent to
distribute more than 500 grams of cocaine.
Neither of the first two asserted claims alleges a
constitutional or a jurisdictional error. Since Martinez-
Mejia failed to pursue either claim on direct appeal, any
error would warrant reversal only in "exceptional
circumstances" and only if the error resulted in a "complete
miscarriage of justice." Knight v. United States, 37 F.3d
769, 772 (1st Cir. 1994). We have reviewed carefully the
record in this case and find nothing which indicates that
justice miscarried.
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As to third claim, Martinez-Mejia suffered no
discernible prejudice from the variance between the offense
as listed on the PSR and the offense as listed on the
judgment. Nonetheless, we direct the district court to
correct the record as appropriate. See Fed. R. Crim. P. 36.
Affirmed.
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