USCA1 Opinion
June 24, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2136
DAVID MALGERI,
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. Walter Jay Skinner, Senior U.S. District Judge]
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Before
Selya, Cyr, and Lynch,
Circuit Judges.
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David Malgeri on brief pro se.
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Donald K. Stern, United States Attorney, Donald L. Cabell,
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Assistant U.S. Attorney.
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Per Curiam. Pro se petitioner David Malgeri appeals a
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district court order that summarily denied his motion to set
aside his conviction and withdraw his guilty plea under 28
U.S.C. 2255. Malgeri pled guilty to attempting to rob a
federally insured bank in violation of 18 U.S.C. 2,
2113(a), and to using and carrying a firearm during that
attempt in violation of 18 U.S.C. 924(c). He contends that
his plea was not knowing and voluntary because the district
court failed to warn him about supervised release and its
effect during his Rule 11 hearing. In an apparent effort to
distinguish this case from United States v. Timmreck, 441
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U.S. 780 (1979)(holding that 2255 relief was not available
to a prisoner who alleged that the district court failed to
advise him of a mandatory special parole term in violation of
Rule 11), Malgeri avers that he was wholly unaware of
supervised release and its effect throughout the entire
district court proceedings and that he would not have pled
guilty had he been advised of supervised release.
Relying on Timmreck, the district court concluded that
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Malgeri failed to state a cognizable habeas claim. We agree.
We reject Malgeri's contention that the district court erred
in holding that he had failed to allege a constitutional
error. Malgeri cannot convert a technical Rule 11 violation
into a constitutional error simply by averring that he was
otherwise unaware of supervised release and would not have
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pled guilty had he been so aware. See, e.g., Lucas v. United
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States, 963 F.2d 8, 12-15 (2d Cir. 1992); United States v.
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Holloway, 960 F.2d 1348, 1352-54 (8th Cir. 1992); United
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States v. DeLuca, 889 F.2d 503, 507-08 (3d Cir. 1989).1
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Malgeri also argues that he is entitled to relief from
his firearm conviction because he did not "use" a firearm
as that term is construed in Bailey v. United States, 116 S.
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Ct. 501 (1995). The record discloses that Malgeri's
conviction is fully supportable on the ground that he carried
the firearm. See United States v. Ramirez-Ferrer, 82 F.3d
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1149, 1152 (1st Cir. 1996). Thus, Bailey provides no basis
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for relief.
In view of the foregoing, the judgment of the district
court is summarily affirmed. See Local Rule 27.1.
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1Malgeri also claims that he was prejudiced because the
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plea colloquy misled him to believe that his sentence would
not exceed the 93-101 month guideline sentencing range (GSR)
that the prosecutor identified in response to the court's
questioning. The record refutes this claim. Malgeri pled
guilty pursuant to an open plea agreement that left his
sentence entirely within the court's discretion within the
statutory maximum available under the law. Malgeri affirmed
that he had not been promised a particular sentence at the
Rule 11 hearing. The court's questions concerning the
applicable GSR in no way imported a promise that Malgeri's
sentence would not exceed that range. Thus, Malgeri was not
prejudiced by the plea colloquy.
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