United States v. Lombardi

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-2033





                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  VINCENT LOMBARDI,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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                                 ____________________



            Vince Lombardi on brief pro se.
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            Sheldon Whitehouse, United States Attorney,  and Andrew J.  Reich,
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        Assistant United States Attorney, on brief for appellee.





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                                   October 17, 1997

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                 Per Curiam.    Upon careful  review  of the  briefs  and
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            record, we perceive  no reason to set  aside appellant's plea



            or sentence.



                 The  plea proceedings  reveal  no fundamental  defect or



            miscarriage of justice.   Appellant's argument  regarding the



            scope of 18 U.S.C.   371 is  meritless.  See United States v.
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            Brandon, 17 F.3d 409, 422  (1st Cir.), cert. denied, 513 U.S.
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            820 (1994).  The  record does not support appellant's  claims



            that  his plea  was coerced  and that  the plea  colloquy was



            confusing  or inadequate.   Further,  as  the district  court



            carefully ascertained the voluntariness of appellant's  plea,



            and his plea  agreement reflected the  reciprocal arrangement



            with the codefendant,  we are not compelled to  set aside the



            plea.   Cf. United States  v. Martinez-Molina,  64 F.3d  719,
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            732-34 (1st Cir. 1995).



                 The sentencing proceedings  reveal no clear error  as to



            the  adjustments under U.S.S.G.     2B1.1(b)(4)(B) & 3B1.1(c)



            or otherwise.  And,  by providing that the  restitution order



            was subject to reconsideration, the district court adequately



            took into account appellant's ability to pay.



                 Appellant's  remaining  arguments do  not  merit further



            comment.



                 We   do  not   address   appellant's  claims   regarding



            ineffective assistance  of counsel,  as such  claims must  be











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            presented to  the district court  in the first instance  in a



            motion under 28 U.S.C.   2255.



                 Affirmed.  See 1st Cir. Loc. R. 27.1.
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