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Figueroa v. United States, 93-2028 (1994)

Court: Court of Appeals for the First Circuit Number: 93-2028 Visitors: 4
Filed: Mar. 22, 1994
Latest Update: Mar. 02, 2020
Summary: March 22, 1994 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 93-2028 ANGEL LUIS FIGUEROA, Plaintiff, Appellant, v. UNITED STATES OF AMERICA, Defendant, Appellee. United States v. ________ _____________ Panet-Collazo, 960 F.2d 256, 262 (1st Cir.
USCA1 Opinion









March 22, 1994
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________


No. 93-2028

ANGEL LUIS FIGUEROA,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]
___________________

____________________

Before

Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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____________________

Angel Figueroa on brief pro se.
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A. John Pappalardo, United States Attorney, and Dina Michael
___________________ _____________
Chaitowitz, Assistant United States Attorney, on brief for appellee.
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____________________


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Per Curiam. Angel Luis Figueroa appeals pro se from the
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denial of a motion under 28 U.S.C. 2255 to vacate, set

aside, or correct his sentence. In 1990, upon being

convicted of both conspiring and attempting to possess with

intent to distribute 500 or more grams of cocaine, Figueroa

was sentenced to a prison term of 188 months. This court

thereafter affirmed both his conviction and his sentence.

United States v. Figueroa, 976 F.2d 1446 (1st Cir. 1992),
______________ ________

cert. denied, 113 S. Ct. 1346 (1993). Figueroa now advances
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a pair of challenges to his sentence, claiming that (1) the

quantity of drugs for which he was held accountable was

improperly inflated because of "sentencing entrapment" and

other reasons, and (2) his base offense level was improperly

enhanced by four levels because of his alleged leadership

role. As a corollary complaint, he argues that his counsel

was ineffective in failing to raise these issues earlier.

Assuming arguendo that such contentions are cognizable in a
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2255 proceeding, we find each of them unpersuasive and

therefore affirm.

As explained in greater detail in our earlier opinion,

Figueroa and his confederates were apprehended as a result of

a "reverse-sting" operation involving their attempted

purchase of drugs from an informant for the Drug Enforcement

Agency (Estaban Mendoza). See id. at 1450-51. During the
___ ___

course of his negotiations with Mendoza, Figueroa discussed



















purchasing anywhere from three to five kilograms of cocaine,

explaining that his organization had been selling

approximately $6,000 worth of the drug per day in "dime"

bags. The parties settled upon an initial sale of two

kilograms, with $30,000 being paid up-front and $10,000 to

follow. The sum of $29,850 was in fact seized at the time of

arrest. At sentencing, the court determined that Figueroa

was responsible not only for the two kilograms involved in

the attempted sale, but for an additional three kilograms as

well. This latter figure was reached by extrapolating the

approximate amount of cocaine distributed over the course of

the conspiracy based on Figueroa's acknowledged sales of

$6,000 per day.1 Figueroa now contends that it was error to

hold him accountable for five kilograms for purposes of

sentencing.

The basis for this challenge is amorphous in nature. In

his petition, Figueroa devotes considerable attention to the

notion of "sentencing entrapment" (or, more properly,

"sentencing factor manipulation"). Whatever the theoretical

viability of such a doctrine, see, e.g., United States v.
___ ____ _____________

Brewster, 1 F.3d 51, 55 (1st Cir. 1993); United States v.
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Panet-Collazo, 960 F.2d 256, 262 (1st Cir.), cert. denied,
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____________________

1. The indictment charged that the conspiracy occurred
between December 24, 1989 and January 25, 1990. A DEA agent
testified that one kilogram of cocaine would generate
approximately $70,000 when distributed in "dime" bags. See
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976 F.2d at 1461 n.19.

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113 S. Ct. 220 (1992); United States v. Connell, 960 F.2d
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191, 194-97 (1st Cir. 1992) (all rejecting such a claim on

basis of facts presented), the instant case provides no

occasion to address it. Figueroa's claim in this regard is

based on the misimpression that the additional three

kilograms in question were those that he and Mendoza

discussed for possible sale during their negotiations (beyond

the two kilograms actually agreed upon). Instead, as

mentioned, this figure reflected the quantity of drugs that

Figueroa had admitted selling to others during the previous

month. Figueroa specifically disclaims any suggestion that

the two kilograms involved in the attempted sale were the

subject of "manipulation." And any such argument would have

faltered for the reasons recited in Brewster, 1 F.3d at 55.
________

In a related (if inconsistent) vein, Figueroa contends

that the evidence was insufficient to hold him responsible

for the three kilograms sold by his organization during the

course of the conspiracy. We rejected the identical argument

on direct appeal. Referring to (Angel) Figueroa and his

brother Tomas, we stated:

Tomas, as well as Angel, admitted that $6,000 worth
of "dime" bags were being sold daily through the
record shop during the alleged conspiracy.
Although appellants characterize these statements
as mere "puffery," the sentencing judge who heard
the trial testimony was entitled to credit their
admissions. The court permissibly extrapolated the
approximate amount of cocaine distributed during
the relevant period based on the sums of money
admittedly received. There was no clear error in


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the determination of the quantity of cocaine for
which Angel and Tomas Figueroa were responsible.

976 F.2d at 1460-61 (citations and footnotes omitted).

Figueroa's challenge to the determination regarding his

role in the offense is likewise unavailing. The district

court held that he was "an organizer or leader" under

U.S.S.G. 3B1.1(a) and thus was subject to a four-level

enhancement. On appeal, Figueroa argues only that the

evidence was insufficient to establish that he occupied a

leadership role. To the contrary, as our earlier opinion

amply demonstrates, see 976 F.2d at 1450-51, the district
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court supportably found that he "directed ... all the

activities of his co-conspirators" and that he was "the

controlling participant in negotiating the amount [of cocaine

to be purchased], the price, and the arrangements for

delivery of the money to the confidential informant." App.

44. "Role in the offense" determinations are subject to

review only for clear error. See, e.g., United States v.
___ ____ _____________

Ruiz-Del Valle, 8 F.3d 98, 104 (1st Cir. 1993). We find none
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here.

Finally, as each of Figueroa's central arguments proves

wanting, his subsidiary allegations regarding ineffective

assistance of counsel must also fail.

Affirmed.
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Source:  CourtListener

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