USCA1 Opinion
March 31, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1769
ALVARO ROJO-ALVAREZ,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Chief U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Alvaro Rojo-Alvarez on brief pro se.
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Jay P. McCloskey, United States Attorney, and F. Mark Terison,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Appellant Alvaro Rojo-Alvarez appeals
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from the denial of his motion to vacate his sentence filed
under 28 U.S.C. 2255. The motion essentially raises two
grounds for relief: (1) government undercover agents posing
as buyers engaged in "sentence entrapment" in violation of
appellant's due process rights by requesting a larger amount
of drugs (30 kilograms of cocaine) than appellant could
produce; and (2) counsel provided ineffective assistance by
not raising this issue at the sentencing hearing. The
district court summarily dismissed the motion on the basis
that the drug quantity question had been presented to the
district court at sentencing and rejected by this court on
direct appeal. See United States v. Rojo-Alvarez, 944 F.2d
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959 (1st Cir. 1991). The district court also determined that
counsel had argued the entrapment defense at the sentencing
hearing. We affirm the judgment of the district court.
1. Sentencing Factor Manipulation.1
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Appellant argues that he only had the capacity to
deliver 9 kilograms of cocaine, the amount the conspiracy
actually produced for the fictitious buyers. The government
used the 30-kilogram figure, appellant maintains, only to
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1. Because the phrase "sentence entrapment" is misleading,
this circuit uses the term "sentencing factor manipulation."
United States v. Brewster, 1 F.3d 51, 55 n.5 (1st Cir. 1993)
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(latter phrase correctly puts emphasis on governmental
conduct rather than on a defendant's predisposition to commit
the crime "but for" the government's inducement).
raise his base offense level and, hence, his sentence. There
is no support in the record for this contention. It is plain
from the uncontradicted trial testimony that appellant was
not only aware, from the beginning, that the conspiracy
involved 30 kilograms of cocaine but also was an active
participant in the negotiations for this amount.
When, as now, an offense-level
enhancement results from a
matter that formed part and
parcel of the original
negotiations between a
government agent and his
target, and the criminal
venture proceeds on that basis,
a claim of sentencing factor
manipulation will not lie.
United States v. Brewster, 1 F.3d 51, 55 (1st Cir. 1993). As
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a result of this finding, appellant's claim that the
government's conduct violated due process necessarily fails.
See United States v. Panitz, 907 F.2d 1267, 1272-73 (1st Cir.
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1990) (conduct must be so shocking as to be "fundamentally
unfair" to amount to a violation of a defendant's due process
rights).
Finally, to the extent that appellant simply is
challenging the finding, for sentencing guideline purposes,
that his offense involved 30 kilograms of cocaine, he is
foreclosed from raising this issue in a 2255 motion.
First, we rejected this claim on direct appeal from
appellant's conviction. Rojo-Alvarez, 944 F.2d at 965, 971.
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"Issues disposed of on a prior appeal will not be reviewed
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again by way of a 2255 motion." Tracey v. United States, 739
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F.2d 679, 682 (1st Cir. 1984), cert. denied, 469 U.S. 1109
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(1985). Second, alleged errors in the application of the
guidelines to the facts generally are not cognizable under
2255. Knight v. United States, 37 F.3d 769, 773-74 (1st Cir.
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1994).
2. Ineffective Assistance of Counsel.
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Appellant claims that his attorney failed to raise
the issue of sentencing factor manipulation. However, as the
district court noted, counsel specifically argued at the
sentencing hearing that government agents should not be
allowed to choose a large amount of drugs when a defendant
such as appellant cannot produce that amount. Thus, it is
plain that counsel's conduct was more than objectively
reasonable. See Strickland v. Washington, 466 U.S. 668
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(1984). In any event, because we decide that this issue has
no merit, appellant cannot demonstrate prejudice. Id.
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Affirmed.
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