USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1369
NICHOLAS R. MARINO,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
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Before
Selya and Cyr, Circuit Judges,
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and Bownes, Senior Circuit Judge.
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Cheryl J. Sturm on brief for appellant-petitioner.
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James H. Leavey, Assistant United States Attorney and Edwin
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J. Gale, United States Attorney on brief for respondent.
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July 30, 1993
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PER CURIAM. Petitioner Marino was indicted for
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conspiracy to distribute and possession with intent to
distribute 1,000 kilograms or more of marijuana in violation
of 21 U.S.C. 841(a)(1), (b)(1)(A)(vii) and 846 (Count I),
and attempting to possess with intent to distribute one
hundred kilograms or more of marijuana in violation of 21
U.S.C. 841(a)(1), (b)(1)(B)(vii) and 846, and 18 U.S.C.
2 (Count III). Marino entered a plea agreement with the
government pursuant to which he pled guilty to Count III of
the indictment which had been amended to delete a reference
to the specific quantity of marijuana involved. For its
part, the government agreed to dismiss Count I and recommend
the minimum sentence under Count III at the sentencing
hearing. Marino was sentenced to an eighty-two month term of
incarceration, which sentence was upheld on appeal. United
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States v. Marino, 936 F.2d 23 (1st Cir. 1991). Subsequently,
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Marino filed a motion under 18 U.S.C. 2255 to vacate, set
aside or correct his sentence. The district court summarily
denied the motion without conducting an evidentiary hearing.
Marino appeals, and, finding no error, we affirm.
The background of this case was reported in detail
by this court in its opinion affirming Marino's sentence.
Marino, 936 F.2d 23 (1st Cir. 1991). We therefore will pause
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only long enough to highlight relevant facts in the context
of Marino's two claims.
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I
I
Lack of an Evidentiary Hearing
Lack of an Evidentiary Hearing
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Marino claims that the district court erred in
denying his motion without the benefit of an evidentiary
hearing. Specifically, he contends that, because no rational
explanation was provided to explain his trial counsel's
"paradoxical" advice, the court should have held an
evidentiary hearing. The advice to which Marino refers was
the following: Counsel advised Marino against going to trial
because the jury would not believe his story that he was only
interested in purchasing one pound of marijuana.1
Subsequently, counsel advised Marino to give his one-pound
purchase claim to the Probation Department in a prepared
statement, and to repeat it under oath at the presentence
evidentiary hearing.
Marino followed counsel's advice. The trial judge
did not believe Marino's story, and found instead that Marino
was involved in a transaction which
involved more than 100 kilograms of a
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1. In a letter to petitioner, counsel stated:
It is obvious to me that you will not be
able to testify. In the event you wish
to do so, however, that option is yours.
It is my strong feeling that in the event
you do testify, you would hurt yourself
more than help, and that the government
could, quite easily, prove the
allegations necessary to convict you in
Count No. III, based on your own prior
statement and the testimony of the other
defendants.
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substance containing a detectable amount
of marijuana, that is, 500 pounds, that
the deal was, and as the tape
demonstrated, it was going to be 500
pounds at a time or maybe 1000 pounds at
a time until we got to the ultimate
amount. So that I'm satisfied with
respect to the third count that there was
more than 100 kilos that Mr. Marino was
involved with.
That finding was upheld by this court on appeal. Marino, 936
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F.2d at 27-29. Three consequences flowed from the finding:
first, Marino's base offense level was set at 26; second,
Marino was not given credit for acceptance of responsibility
because he only acknowledged his guilt with respect to one
pound of marijuana; and third, the court added a two-level
upward adjustment for obstruction of justice, finding that
Marino had lied at the presentence evidentiary hearing and in
his statement of acceptance of responsibility. This court
affirmed these decisions on appeal. Marino, 936 F.2d at 27-
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32.
Marino now claims that had he been advised of the
possible consequences of his statement to the Probation
Department and his testimony at the presentence hearing, he
would have presented his story through third-party witnesses
rather than testifying on his own behalf. He alleges that he
presented the district court with a prima facie case of
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ineffective assistance of counsel, and that the district
court erred in dismissing his claim without the benefit of an
evidentiary hearing. We disagree.
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Section 2255 provides that a petitioner is entitled
to an evidentiary hearing on his motion "[u]nless the motion
and the files and records of the case conclusively show that
the prisoner is entitled to no relief." Rule 4(b) of the
Rules Governing Section 2255 Proceedings in the United States
District Courts provides that "[i]f it plainly appears from
the face of the motion and any annexed exhibits and the prior
proceedings in the case that the movant is not entitled to
relief in the district court, the judge shall make an order
for its summary dismissal and cause the movant to be
notified." This court has summarized the rule as follows:
[A] petition can be dismissed without a
hearing if the petitioner's allegations,
accepted as true, would not entitle the
petitioner to relief, or if the
allegations cannot be accepted as true
because "they are contradicted by the
record, inherently incredible, or
conclusions rather than statements of
fact." Dziurgot v. Luther, 897 F.2d
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1222, 1225 (1st Cir. 1990) (quoting Myatt
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v. United States, 875 F.2d 8, 11 (1st
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Cir. 1989)).
United States v. Rodriguez-Rodriguez, 929 F.2d 747, 749-50
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(1st Cir. 1991).
Petitioner claims that his counsel's inconsistent
advice, because it resulted in an increase in petitioner's
offense level, constituted, ipso facto, ineffective
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assistance of counsel. The legal standard is clear.
Petitioner must show both that counsel's performance fell
below an objective standard of reasonableness and that
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prejudice resulted. Strickland v. Washington, 466 U.S. 668,
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687 (1984). See also Lopez-Nieves v. United States, 917 F.2d
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645, 648 (1st Cir. 1990). Counsel's performance must be
examined "not in hindsight, but based on what the lawyer
knew, or should have known, at the time his tactical choices
were made and implemented." United States v. Natanel, 938
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F.2d 302, 309 (1st Cir. 1991), cert. denied, 112 S. Ct. 986
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(1992). The "range of reasonable professional assistance" is
quite wide. See Strickland, 466 U.S. at 689. Therefore, as
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the Supreme Court has noted, "[j]udicial scrutiny of
counsel's performance must be highly deferential." Id.
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We cannot say that defense counsel's performance
was unreasonable. As the court below held,
[I]n making decisions regarding the
propriety of having Petitioner testify at
a trial and at a presentence evidentiary
hearing, defense counsel had to evaluate
two very distinct sets of circumstances.
In deciding that Petitioner should not
testify at trial, defense counsel had to
take into account the considerable wealth
of government evidence. . . . In
deciding to permit Petitioner to testify
at his presentence evidentiary hearing,
however, defense counsel was required to
view the government's evidence in a much
different light. Although the government
possessed an abundance of evidence
linking Petitioner with the drug
transaction generally, the government's
evidence concerning the specific amount
involved in the transaction was less
persuasive. See United States v. Marino,
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936 F.2d at 28[-29]. Given the strength
of the government's evidence connecting
Petitioner with some sort of marijuana
purchase and the ambiguities in the
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government's evidence concerning the
amount of marijuana, it cannot be said
that defense counsel's advice concerning
either matter fell below an objective
standard of reasonableness.
Marino v. United States, No. 92-0503B, Mem. and Order at 4
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(D. R.I. February 23, 1993). Petitioner erroneously assumes
that giving different advice with respect to an issue at
different stages of a prosecution is per se unreasonable.
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The district court acted within its discretion in denying
petitioner's motion without benefit of an evidentiary
hearing. Nothing would have been added to the court's
understanding of the issue by holding a hearing, especially
when the same court that denied the 2255 motion heard the
relevant evidence at sentencing.
Even were we to accept petitioner's contention that
counsel's advice was unreasonable, we fail to see how he was
prejudiced by that advice. Petitioner claims that
"[p]rejudice in the case at bar is readily identified in
mathematical terms. The Guideline Range would have been 51-
63 months had the defendant been given consistent advice
about not giving a statement to the Probation Department and
not taking the witness stand at the Fatico hearing." We
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disagree. Petitioner had much to gain by testifying. Had
the court believed him, the sentencing guideline range for
the base offense level would have dropped from 63-78 months
to 2-8 months. As the court below held, "[g]iven the
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tremendous reduction in sentence Petitioner stood to gain by
successfully challenging the amount of marijuana, the court
cannot say that `but for' defense counsel's lack of advice
Petitioner would have decided not to testify at the
presentence evidentiary hearing." Marino v. United States,
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No. 92-0503B, Mem. and Order at 6.
In sum, petitioner's allegations, to the extent
they are factual, "would not entitle petitioner to relief"
under section 2255, Rodriguez-Rodriguez, 929 F.2d at 749;
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and, to the extent they are conclusory, need not be credited.
See id. at 740-50. Hence, an evidentiary hearing was not
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required.
II
II
Amendment of the Indictment
Amendment of the Indictment
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Count III of Marino's original indictment stated:
The Grand Jury further charges:
That on or about December 19, 1989, in
the District of Rhode Island and
elsewhere, defendant NICHOLAS R. MARINO
did attempt to possess with the intent to
distribute 100 kilograms or more of a
mixture or substance containing a
detectable amount of marihuana, a
Schudule [sic] I Controlled Substance in
violation of Title 21, United States
Code, Sections 841(a)(1) and
(b)(1)(B)(vii).
All in violation of Title 21, United
States Code, Section 846 and Title 18,
United States Code, Section 2.
As part of his plea agreement with the government, the words
"100 kilograms or more of" were deleted from the indictment,
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by order of the court, prior to his entry of a plea of guilty
to Count III. The petitioner, the government and the court
all agreed that the amount of marijuana which Marino had
attempted to purchase was not an element of the crime with
which he had been charged, but rather that it was a
sentencing issue to be determined by the court in a
presentence evidentiary hearing prior to sentencing. See
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United States v. Barnes, 890 F.2d 545, 551 n.6 (1st Cir.
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1989), cert. denied, 494 U.S. 1019 (1990).
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After the modification, Count III of the indictment
stated that Marino "did attempt to possess with the intent to
distribute a mixture or substance containing a detectable
amount of marihuana, a Schudule [sic] I Controlled Substance
in violation of Title 21, United States Code, Sections
841(a)(1) and (b)(1)(B)(vii)." It is unclear why the
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reference to a violation of 841(b)(1)(B)(vii) was not also
deleted. That provision provides for a mandatory five-year
minimum sentence for violations of 841(a) involving "100
kilos or more of a mixture or substance containing a
detectable amount of marijuana." 21 U.S.C.
841(b)(1)(B)(vii).
Although a hypertechnical reading of the amended
indictment could therefore lead to the conclusion that Marino
did, despite his best efforts, plead guilty to attempting to
possess more than one hundred kilos of marijuana, we decline
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to so read the record. It is clear from the transcript of
the plea hearing that Marino did not intend to plead guilty
to an attempt to possess with intent to distribute more than
one pound of marijuana. It is likewise clear that the
government was amenable to his plea of guilty to an
undetermined quantity of marijuana, and that the issue of
quantity would be determined by the court at a presentencing
hearing. In the course of the plea colloquy, the court
determined that Marino understood: (1) the maximum penalty
for the crime with which he was charged; (2) that the penalty
would depend upon the amount of marijuana that he had sought
to purchase; and, (3) that the court would determine that
amount.
Marino now claims that the court order deleting the
phrase "100 kilograms or more of" from Count III of the
indictment was an improper amendment of the indictment, and
that, as a result, the court was divested of jurisdiction in
the case. Marino concedes that the quantity of drugs
involved is not an element of an offense charged under 21
U.S.C. 841(a). He claims, however, that the quantity did
not constitute mere surplusage in the indictment because it
"notifies the accused of the exact nature of the charge," and
because "it alerts the defendant to the applicability of the
penalty enhancement provision."
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Petitioner's claims are without merit. As this
court recapitulated in United States v. Angiulo,
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"An indictment may not be amended
except by resubmission to the grand jury,
unless the change is merely a matter of
form," but withdrawal of a portion of the
indictment that the evidence does not
support is not an impermissible
amendment, "provided nothing is thereby
added to the indictment, and that the
remaining allegations charge an offense."
847 F.2d 956, 964 (1st Cir.) (quoting United States v.
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Winter, 663 F.2d 1120, 1139-40 (1st Cir. 1981)), cert.
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denied, 488 U.S. 928 (1988). In this case, nothing was added
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to the indictment by the removal of the reference to "100
kilos or more of" marijuana, and the remaining allegations
charged an offense. Indeed, they charged the offense with
which Marino had originally been charged: possession with
intent to distribute marijuana. Section 841(a) criminalizes
the possession with the intent to distribute any quantity of
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marijuana. The quantity of drugs involved is not an element
of the crime; rather it is an issue to be determined by the
judge at the time of sentencing. See Barnes, 890 F.2d at 551
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n.6.
Marino's contention that vital information was
deleted from the indictment is rebutted by the fact that
Count III of the indictment, as amended, retained a reference
to 21 U.S.C. 841(b)(1)(B)(vii), thereby putting Marino on
notice as to the potential applicability of the enhanced
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penalty provision. Furthermore, the fact that the government
had included the "100 kilograms or more" language in the
original indictment, along with the plea colloquy, made it
clear to defendant that the government would contest Marino's
"one pound" story at the time of sentencing. It cannot be
said that the amendment to the indictment resulted in unfair
prejudice or surprise to Marino. He requested the amendment,
and demonstrated an understanding of the implications that
amendment would have for the sentencing process. The
amendment to the indictment was proper and did not divest the
district court of jurisdiction.
III
III
Conclusion
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Finding no error in the judgment of the district
court, the judgment is therefore summarily affirmed. See 1st
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Cir. Loc. R. 27.1.
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