USCA1 Opinion
March 30, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1847
CHRISTOPHER BONAVITA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Christopher Bonavita on brief pro se.
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Donald K. Stern, United States Attorney, and C. Jeffrey Kinder,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Christopher Bonavita appeals pro se from
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the district court's dismissal of his motion to vacate,
modify or correct his sentence pursuant to 28 U.S.C. 2255.
Bonavita also appeals from the district court's order dated
August 1, 1994, denying his motion for leave to respond to
the government's opposition. He requests that the case be
remanded for an evidentiary hearing on the issue of
"sentencing factor manipulation."
I. Background
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Bonavita pleaded guilty to two counts of an indictment
charging him with conspiracy to distribute cocaine in
violation of 21 U.S.C. 846 (count two) and attempt to
possess with intent to distribute 500 grams or more of
cocaine in violation of 21 U.S.C. 841(b)(1)(B) and 18
U.S.C. 2 (count four). Count two, although a pre-
guidelines offense, was included as "relevant conduct" in
arriving at a base offense level. See U.S.S.G. 1B1.3. The
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pre-sentence report calculated a guideline imprisonment range
of 41 to 51 months. The statutory mandatory minimum sentence
for count four, however, was sixty months. See 28 U.S.C.
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841(b)(1)(B). Accordingly, in October, 1992, the court
sentenced Bonavita to sixty months' imprisonment. The court
failed to specify the sentence imposed on count two.
Bonavita did not appeal. He filed this 2255 motion in
May, 1994. The motion sought relief on the ground of
ineffective assistance of counsel. He faulted his attorney
for failing to raise the following arguments at sentencing or
on appeal: 1) that "sentencing factor manipulation" entitled
Bonavita to a departure from the guideline sentence; 2) that
the court erroneously believed it lacked discretion to impose
a sentence below the mandatory minimum sentence prescribed by
statute; and 3) that the district court erred in failing to
specify the sentence imposed for Count Two. Bonavita's motion
focused primarily on the sentencing manipulation argument,
suggesting that the government may have proposed the
"outrageously low price of $6,500" for a kilogram of cocaine
for the purpose of inducing Bonavita to deal in a larger
quantity of cocaine than was his custom, thereby triggering
the statutorily prescribed ten-year mandatory minimum
sentence.
On May 17, 1994, the district court ordered the
government to respond to Bonavita's 2255 motion. The
government filed an opposition on July 14, 1994. In response
to the sentencing manipulation argument, the government
attached to its opposition a declaration under oath by
Special Agent Sean McDonough of the Drug Enforcement
Administration ("the McDonough affidavit"), the undercover
agent who made the attempted sale to Bonavita. The McDonough
affidavit stated that Bonavita and co-defendant Michelle
Malloy had agreed to purchase the kilogram of cocaine for
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$17,000, with a $10,000 downpayment to be followed by
delivery of the balance after distribution of the cocaine.
McDonough also stated in the affidavit that Malloy later met
with him to explain that she and Bonavita could only come up
with a $6,500 down payment.
In a memorandum and order dated July 19, 1994, the
district court denied Bonavita's 2255 motion. Bonavita, in
response to the government's opposition and affidavit, filed
a motion requesting an opportunity to respond or for a
hearing. That motion, dated July 20, 1994, was denied on
August 1, 1994, on the ground that the district court had
already denied the 2255 motion.
II. Discussion
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"To succeed in setting aside a conviction premised on
ineffective assistance of counsel, a petitioner must
establish both constitutionally deficient performance on his
attorney's part and concomitant prejudice, or, phrased
another way, that the quality of legal representation at his
trial was so inferior as to be objectively unreasonable, and
that this incompetent lawyering redounded to his substantial
detriment." United States v. McGill, 11 F.3d 223, 226 (1st
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Cir. 1993)
A.Sentencing Factor Manipulation
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This court has recognized, at least in theory, the
doctrine of sentencing factor manipulation. See United States
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v. Connell, 960 F.2d 191, 196 (1st Cir. 1992); United States
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v. Castiello, 915 F.2d 1, 5 n.10 (1st Cir. 1990), cert.
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denied, 498 U.S. 1068 (1991); see also U.S.S.G. 2D1.1
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comment note 17 (stating that a downward departure may be
warranted where "in a reverse sting . . . the court finds
that the government agent set a price for the controlled
substance that was substantially below the market value of
the controlled substance, thereby leading to the defendant's
purchase of a significantly greater quantity of the
controlled substance").
Given the lack of an evidentiary predicate in this case,
however, the argument would not have held sway. See
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Castiello, 915 F.2d at 5 n.10. "[T]he burden of showing
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sentencing factor manipulation rests with the defendant."
United States v. Gibbens, 25 F.3d 28, 31 (1st Cir. 1994). The
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only evidentiary support that Bonavita has offered for the
sentencing manipulation argument, either in his petition or
in his briefs, is the pre-sentence report ("PSR").1
Bonavita alleges that the PSR states that the $6,500 was the
full purchase price. Our review of the PSR, however, reveals
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1. Bonavita refers to a government "de-briefing" in which
Malloy allegedly stated that $6,500 represented the entire
purchase price. Neither in his motion to respond to the
government's opposition, nor in his briefs, however, has
Bonavita suggested that Malloy would have testified to this
effect, or even that Bonavita himself would testify that
$6,500 was the full, agreed-upon purchase price.
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that it fails to contain any such statement. The only
reference to the $6,500 in the PSR is as follows:
Bonavita and Malloy agreed to buy one
kilogram of cocaine and pooled their
money to make the purchase from Special
Agent McDonough. Malloy delivered $6500
to McDonough at a shopping plaza in the
North End of Springfield on December 23,
1987.
This quote is far from a definitive statement that the $6,500
represented the full purchase price and, in fact, is equally
consistent with a finding that the $6,500 represented a down
payment. The McDonough affidavit directly refutes
appellant's allegation that the $6,500 represented the full
purchase price. Given the "inadequate factual foundation,"
Connell, 960 F.2d at 195, for the sentencing factor
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manipulation argument in this case, counsel's failure to
raise the issue did not constitute ineffective assistance.
The district court denied Bonavita's 2255 petition
only five days after the government filed its opposition,
leaving little time for Bonavita, a pro se petitioner, to
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respond thereto. Nonetheless, the district court did not err
in denying the 2255 motion without a hearing where Bonavita
failed to give any indication of how he would refute the
McDonough affidavit. Even now, Bonavita relies solely on the
PSR, which clearly does not contradict the McDonough
affidavit. No sworn statments or other offers of testimony
have been made. "When a petition is brought under 2255,
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the petitioner bears the burden of establishing the need for
an evidentiary hearing." United States v. McGill, 11 F.3d at
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225. An evidentiary hearing is not necessary where a 2255
motion "although facially adequate is conclusively refuted as
to the alleged facts by the files and records of the case."
United States v. McGill, 11 F.3d 223, 226 (1st Cir. 1993).
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Here, the district court supportably found that appellant's
allegation that the $6,500 represented the entire purchase
price was conclusively refuted by DEA Agent McDonough's
detailed sworn statement. Therefore, the district court did
not err in refusing to grant an evidentiary hearing.
B. Failure to Depart Below Mandatory Minimum Sentence
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For the reasons stated by the district court, Bonavita
has not established that his attorney's failure to argue that
the district court could impose a sentence below the
statutory minimum constituted ineffective assistance.
Bonavita pleaded guilty to count four of the indictment which
charged him with
attempting to possess with intent to distribute 500 grams or
more of cocaine in violation of 21 U.S.C. 841(b)(1)(B) and
18 U.S.C. 2. The conduct underlying the offense occurred
in December, 1987.
Section 841(b)(1)(B), mandating a minimum sentence of
five years' imprisonment for violations involving 500 grams
or more of cocaine, went into effect on October 27, 1986. See
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Gozlon-Peretz v. United States, 498 U.S. 395, 404-07 (1991).
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It is therefore indisputable that the statutory minimum was
in effect at the time that the offense charged in count four
occurred (and at the time that the offenses charged in count
two occurred as well). A defendant's "substantial
assistance" in investigating or prosecuting another, see 18
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U.S.C. 3553(e), "is virtually the only occasion on which
the statutory minimums may be disregarded." United States v.
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Torres, 33 F.3d 130, 131 (1st Cir. 1994), cert. denied, ___
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U.S. ___, 115 S. Ct. 767 (1995). Bonavita does not claim to
have provided such assistance. Therefore, the district court
had no discretion to sentence Bonavita to less than five
years for count four. His attorney's failure to argue
otherwise was not ineffective assistance.
C. Failure to Specify Sentence for Count Two
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According to the pre-sentence report, the plea agreement
provided that the government would recommend with respect to
count two that the sentence run concurrently with the
sentence imposed on count four. It is implicit in the
district court's sentencing order that the court accepted
that recommendation. Even if it was error for the district
court not to specify the sentence, the failure could not have
prejudiced Bonavita. The five-year sentence Bonavita
received for count four was the mandatory minimum sentence
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under the applicable statute. Therefore, the prejudice prong
of the Strickland test has not been satisfied.
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The denial of Bonavita's 2255 petition is affirmed.
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