USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2269
UNITED STATES,
Appellee,
v.
GEORGE MORAN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
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Before
Selya, Boudin and Lynch,
Circuit Judges.
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George Moran on brief pro se.
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Donald K. Stern, United States Attorney, and Dina Michael
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Chaitowitz, Assistant United States Attorney, on Motion for Summary
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Disposition, for appellee.
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February 5, 1997
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Per Curiam. We have carefully reviewed the record on
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appeal and the briefs of the parties. Assuming, in appellant
George Moran's favor, that he has filed a timely appeal, we,
nonetheless, conclude that the appeal has no merit.
The district court neither erred nor abused its
discretion in construing Moran's self-styled "motion to amend
an amended judgment in a criminal case" as a motion, filed
pursuant to 28 U.S.C. 2255, to vacate, set aside or correct
his sentence. Neither did the district court err or abuse
its discretion in denying Moran's motion for default.
Moran's contention that the government's response to his
2255 motion was late is unsupported in the record and, in any
event, contrary to Moran's supposition, even if it were
tardy, Moran is not thereby automatically entitled to a
ruling on his 2255 motion in his favor.
As for the substance of the 2255 motion, the district
court correctly concluded that, in this collateral attack,
Moran may not relitigate issues already raised and rejected
in his direct appeal and, to the extent that Moran seeks to
raise new issues, they could have been, but were not, raised
in that direct appeal.
In any event, Moran's complaint about the time frame of
the conspiracy, to the extent it is not foreclosed by our
opinion in his direct appeal, see United States v. Moran, 984
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F.2d 1299 (1st Cir. 1993), is simply factually erroneous.
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Contrary to Moran's apparent present understanding, he was
not charged with conspiring with Paul Callahan, who was
jailed in October 1988; rather, he was charged with
conspiring with Hobart Willis (the alleged ringleader) and
others and that conspiracy was alleged to have lasted until
June 12, 1990.
Moran's remaining appellate arguments are foreclosed not
only by circuit precedent, see United States v. Lindia, 82
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F.3d 1154, 1161 (1st Cir. 1996), but also circuit precedent,
the holding of which was recently favorably cited by the
Supreme Court, see United States v. Watts, 117 S. Ct. 633
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(1997) (per curiam), citing United States v. Mocciola, 891
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F.2d 13, 16-17 (1st Cir. 1989). Finally, the government
correctly points out that the amount of cocaine underlying
the counts on which Moran was acquitted played no dispositive
role in the ultimate sentence imposed. His offense level,
and his sentence, was determined by his status as a career
offender.
The "motion for reassignment of appellate panel" is
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denied.
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The orders of the district court denying the motion for
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default and the 2255 motion are Affirmed.
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