[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit


No. 00-2531

                        MICHAEL LANZA,

                    Petitioner, Appellant,

                              v.

                        UNITED STATES,

                    Respondent, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE

     [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


                            Before

                      Boudin, Chief Judge,
               Selya and Lipez, Circuit Judges.




     Michael Lanza on brief pro se.
     Gretchen Leah Witt, United States Attorney, and Peter E.
Papps, First Assistant U.S. Attorney, on Motion for Summary
Disposition for appellee.




                      November 28, 2001
              Per Curiam. After a thorough review of the record

and of the parties' submissions, we affirm.

              Appellant Michael Lanza ("Lanza") was convicted of

one count of conspiracy, in violation of 18 U.S.C. § 371,

and    four    counts       of   interstate     transportation       of   stolen

property, in violation of 18 U.S.C. §§ 2314 and 2.                             The

stolen      property        included,     inter     alia,    a     quantity     of

pharmaceuticals             equivalent    to      1,368.66        kilograms     of

marijuana.         Lanza appeals from the district court's denial

of his petition filed pursuant to 28 U.S.C. § 2255 alleging

ineffective assistance of counsel at sentencing.                           Lanza

asserts       that   his     attorney    performed      deficiently       by   (1)

failing to assert more vigorously that Lanza intended to

consume rather than sell the stolen drugs, and (2) failing

to argue that Lanza was entitled, pursuant to U.S.S.G. §

5G1.3(b), to full credit on his federal sentence for the

time   he     had    served      in   state   prison    on   an    undischarged

sentence for drug trafficking.

              We     find    ample    support     in   the   record    for     the

inference that Lanza did intend to sell at least a large

portion of the stolen drugs, and Lanza has not produced or

offered any evidence to support his assertion that all the

drugs were intended for personal use.                  Accordingly, we think
that    the   offense     level   was    appropriately        determined   by

applying U.S.S.G. § 2D1.1 pursuant to the cross-reference in

U.S.S.G. § 2B1.1(c)(1)(B).              Moreover, given that counsel

would have had to establish that petitioner consumed or

intended to consume the equivalent of more than 368.66

kilograms of marijuana to make any difference in the offense

level   under    §   2D1.1, compare U.S.S.G. §§ 2D1.1(c)(4) &

(c)(5), we do not think counsel's failure to aggressively

seek a reduction in the attributable drug weight at the plea

negotiation stage was unreasonable, particularly in light of

the fact that he later sought a downward departure based on

personal use.

              Further, we think there is sufficient evidence in

the record to justify application of § 2D1.1 even without

considering Lanza's state court drug trafficking conviction.

Accordingly,      Lanza    was    not   prejudiced       by   his   counsel's

failure to argue for full credit for the undischarged state

drug    sentence     pursuant     to    U.S.S.G.     §    5G1.3(b).        See

Strickland v. Washington, 

, 687 (1984); United

States v. Caraballo, 

, 28-29 (1st Cir. 1999).

              Finally,    to   the   extent   Lanza      claims     that   his

counsel was ineffective for failing to file a direct appeal

on his behalf, his challenge is based on his disagreement


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with his attorney's assessment of the issues.             Since Lanza

does   not   dispute     that   his    attorney   consulted   with   him

concerning the potential for an appeal, and does not contend

that he ever instructed counsel to file a notice of appeal,

defense counsel's failure to appeal was not constitutionally

deficient.      See Roe v.      Flores-Ortega, 

, 478

(2000).

             Affirmed.    See Loc. R. 27(c).




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