
USCA1 Opinion

	




          March 30, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                  _________________        No. 94-1847                                CHRISTOPHER BONAVITA,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Christopher Bonavita on brief pro se.            ____________________            Donald  K. Stern, United  States Attorney,  and C. Jeffrey Kinder,            ________________                                _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.   Christopher  Bonavita appeals pro  se from                 __________                                  ___  __            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                                    _   __________                 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                                               ___            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.                                                           ___            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                                         -3-            $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                                     __   __________                 "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                        ______________    ______            Cir. 1993)                 A.Sentencing Factor Manipulation                   ______________________________                 This  court  has recognized,  at  least  in theory,  the            doctrine of sentencing factor manipulation. See United States                                                        ___ _____________                                         -4-            v.  Connell, 960 F.2d 191, 196 (1st Cir. 1992); United States                _______                                     _____________            v.  Castiello,  915 F.2d  1, 5  n.10  (1st Cir.  1990), cert.                _________                                           _____            denied,  498 U.S.  1068  (1991); see  also  U.S.S.G.    2D1.1            ______                           ___  ____            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                                                                      ___            Castiello,  915 F.2d  at 5  n.10.   "[T]he burden  of showing            _________            sentencing factor  manipulation  rests with  the  defendant."            United States v. Gibbens, 25 F.3d 28, 31 (1st Cir. 1994). The            _____________    _______            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                                            ____________________            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.                                         -5-            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            _______            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                                                   ___ __            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,                                         -6-            the petitioner bears the burden of  establishing the need for            an  evidentiary hearing." United States v. McGill, 11 F.3d at                                      _____________    ______            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).            ______________    ______            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                    __________________________________________________                 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                                                                      ___                                         -7-            Gozlon-Peretz v. United States,  498 U.S. 395, 404-07 (1991).            _____________    _____________            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                                                                   ___            U.S.C.   3553(e),  "is virtually the  only occasion on  which            the statutory minimums may  be disregarded." United States v.                                                         _____________            Torres, 33 F.3d 130,  131 (1st Cir. 1994), cert.  denied, ___            ______                                     _____________            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                    _________________________________________                 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                                         -8-            under the applicable statute.  Therefore, the prejudice prong            of the Strickland test has not been satisfied.                   __________                 The denial of Bonavita's   2255 petition is affirmed.                                                             ________                                         -9-
