
USCA1 Opinion

	




          November 20, 1992                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1508                                ROYAL W. HADFIELD, JR.,                                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, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Royal W. Hadfield, Jr. on Memorandum.            ______________________            A.  John Pappalardo,  United  States Attorney,  and  Dina  Michael            ___________________                                  _____________        Chaitowitz, Assistant United States Attorney, on brief for appellee.        __________                                 ____________________                                 ____________________                      Per Curiam.   Royal W. Hadfield,  Jr. was convicted                      __________            of possessing with intent to distribute 100 or more marijuana            plants, using  his property to facilitate  a drug trafficking            crime, using  and  carrying firearms  in relation  to a  drug            trafficking crime and being a prohibited person in possession            of firearms.  He  was sentenced to fifteen years in prison on            the controlled  substance charge, and to  a consecutive five-            year prison term  for each of  the firearms-related  charges.            We affirmed his conviction in United States v. Hadfield,  918                                          _____________    ________            F.2d  987  (1st Cir.  1990), cert.  denied,  111 S.  Ct. 2062                                         _____________            (1991).    Hadfield  then  brought  a  motion  to vacate  his            sentence under  28 U.S.C.    2255,  which the district  court            denied.   Hadfield  now appeals  the  denial of  his  motion.            Finding no error in the district court's decision, we affirm.                                     DISCUSSION                                     __________                      On  appeal Hadfield raises  a host of  issues.1  He            claims that  he  did  not  receive  effective  assistance  of                                            ____________________            1.  Because  Hadfield  does  not reargue  certain  points  on            appeal, the government asserts that Hadfield has waived those            points, although  it also  notes that Hadfield  requested the            court  to review his motion  and briefs below  "for a precise            statement of his  claims and  arguments."  In  his Notice  of            Appeal, Hadfield  stated that he  is appealing the  "whole of            the [district court's] memo and order."  His statement of the            issues  on appeal  also  essentially  restates the  arguments            raised in his  original motion and brief  (with the exception            of  his   arguments  relating  to  exclusive   possession  of            controlled   substances,   downward   departure,   and   plea            bargaining).  Because Hadfield  has clearly stated his intent            to  appeal  all issues  and because  we  often permit  pro se            petitioners to  rely on their underlying  section 2255 motion            and  briefs on appeal, we  find that Hadfield  has not waived            any arguments  originally presented to the  district court by            not rearguing them before this court.            counsel  before  and during  the trial.   He  alleges various            constitutional  infirmities  in   the  controlled   substance            statute under  which he was  convicted and in  the Sentencing            Guidelines.  He  also claims that  the district court  should            have  given him a downward  departure based on  the weight of            the  marijuana he was found  to have possessed,  and that the            court should  have held  an evidentiary hearing  to determine            certain issues.  We consider these claims of error in turn.2                                            ____________________            2.  The government suggests that  several claims of error now            made by Hadfield  were not raised  below.   We find that  the            argument that  21 U.S.C.   841(b)(1)(C)  is arbitrary because            it  contemplates using  an  everyday definition  of the  word            "plant" is  not a new issue on appeal.  In his original brief            Hadfield stated that  the "scientific" definition  of "plant"            should be used "as opposed to the dictionary definition."  In            addition, much of Hadfield's appellate argument on this point            responds  to the government's  argument below.  Nevertheless,            we  do not further consider Hadfield's argument here.  As the            government states, using the common understanding of the word            "plant"  as  reflected  in   its  dictionary  definitions  is            appropriate.   See Chapman v. United States, 111 S. Ct. 1919,                           ___ _______    _____________            1925 (1991)  (because the terms "mixture"  and "substance" as            used  in 21 U.S.C.   841 were  not defined by Congress or the            Sentencing  Guidelines,  the terms  were  to  be given  their            "ordinary  meaning"; to  determine  that  meaning, the  Court            consulted dictionaries).                   We  also find  that Hadfield  raised the  argument below            that section 841(b)(1)(C) permits prosecutors at whim to seek            radically different sentences for  the same offense.   But we            do not find the argument to  have any merit, for the  reasons            given in the government's appellate brief.  See, e.g., United                                                        ___  ____  ______            States v. Corley, 909 F.2d 359, 361  (9th Cir. 1990) (when an            ______    ______            offender  possesses  live  marijuana  plants,  the  number of            plants  will be used to determine the base offense level, but            when  the  marijuana has  been  dried, its  weight  is used).            Moreover,  Hadfield's  argument  seems  to be  based  on  the            erroneous  premise  that  a   prosecutor  can  use  the  drug            equivalency tables in the Sentencing Guidelines to convert an            offender's possession  of dried marijuana into  possession of            marijuana plants and vice versa in charging an offender under            21 U.S.C.   841.                                           -3-                      I.  Ineffective Assistance of Counsel                           _________________________________                      Hadfield, who  was  tried jointly  with  his  wife,            claims that his counsel should have moved to sever his wife's            trial  from  his  because  his  wife's  defense  was  "wholly            inconsistent"  with his  claim of  innocence.   As the  court            found, however, the evidence at trial that Hadfield possessed            marijuana   with   intent  to   distribute   was  compelling.            (Hadfield  also  admitted  to  possessing   marijuana  in  an            affidavit submitted to the  district court in connection with            his  section 2255  motion.)   In light  of the  evidence, any            suggestion in  his wife's  presentation of her  defense which            could   have  incriminated   him  would   have   been  merely            cumulative.   Furthermore, Hadfield has pointed  to no record            evidence demonstrating that his wife was willing to exculpate            him,  nor  has  he  stated  what  precisely  she  would  have            testified  to  had their  trials  been  severed.   Therefore,            trying  Hadfield and his wife jointly does not appear to have            prejudiced Hadfield, and the district court would have had no            basis  for  granting  any  motion to  sever  that  Hadfield's            counsel  might have brought.   See United  States v. Perkins,                                           __________________    _______            926  F.2d 1271, 1280, 1281 (1st Cir. 1991) (there is a strong            public  policy  favoring joint  trials  where  the same  drug                                            ____________________                 Finally,  we  agree with  the  government  that, by  not            presenting  it to  the  district court,  Hadfield waived  his            claim that  his attorney  rendered ineffective  assistance of            counsel by conceding in the presentence investigation  report            that Hadfield possessed more than 100 marijuana plants.                                         -4-            violation is alleged; the court did  not abuse its discretion            in denying a motion to sever where a husband did not state he            was  willing   to  exculpate   his  wife  or   describe  with            particularity what his testimony would be); Fed. R. Crim.  P.            Rule 14 (the  court may  grant a severance  if the  defendant            would  be prejudiced  by  a joinder  of  defendants).   Since            severance  was  not  warranted,  the  failure  of  Hadfield's            counsel to bring a  motion to sever the Hadfields'  trial did            not amount to ineffective assistance of counsel.                      Hadfield also claims that his counsel's failure  to            renew a motion for  acquittal at the end of  his presentation            of  the   defense  evidence  was  ineffective  assistance  of            counsel.   Hadfield claims  that this failure  prejudiced him            because it caused this court to use a more stringent standard            of  review  in determining,  on  direct  appeal, whether  the            evidence  was sufficient  to convict  him under  18  U.S.C.              924(c)(1) of using firearms "during  and in relation to"  his            drug  trafficking offenses.   It  is true  that we  applied a            standard of  review more  generous to the  government because            Hadfield's counsel failed to  renew his motion for acquittal.            But  we  also  stated   that  the  evidence  amply  supported            Hadfield's conviction.  See United States v. Hadfield, supra,                                    _________________    ________  _____            918  F.2d at 998 ("Based  on [the] evidence,  the jurors were            well within the pale in [convicting Hadfield of  the firearms            charge].  It was no injustice at all -- much less a clear and                                         -5-            gross injustice -- for Hadfield to  be convicted of violating            18  U.S.C.    924(c)(1)").    Thus,  we  would have  affirmed            Hadfield's conviction,  even under the  more lenient standard            of  review.   Moreover,  since  the  evidence was  more  than            sufficient to  convict Hadfield  of the firearms  charge, the            court would have denied  any motion for acquittal.   Cf. Fed.                                                                 ___            R. Crim. P. Rule  29(a) (acquittal should be ordered  "if the            evidence  is   insufficient   to  sustain   a   conviction").            Consequently, the failure to bring that motion could not have            prejudiced Hadfield, and  does not  support a  claim that  he            received ineffective assistance of counsel.                      Next, Hadfield  asserts that his  counsel's failure            to request a jury  instruction defining "marijuana plant" and            an instruction that only exclusive possession of a controlled            substance   would   support   his    conviction   constituted            ineffective assistance  of  counsel.   Clearly, the  district            court  did   not  err  in  concluding   that  no  ineffective            assistance  of  counsel resulted  from  failing  to give  the            latter instruction.   Case law makes  clear that an  offender            may  be  convicted  for  joint  possession  of  a  controlled            ___            substance.  See, e.g., United States v. Vargas, 945 F.2d 426,                        ___  ____  _____________    ______            428  (1st  Cir. 1991)  (citing cases).    A defendant  is not            entitled to a jury instruction  on an invalid defense theory.            United States v.  McGill, 953  F.2d 10, 12  (1st Cir.  1992).            _____________     ______            Thus, counsel's failure to  seek an instruction that Hadfield                                         -6-            could be convicted  only if his  possession of the  marijuana            had been exclusive did not prejudice Hadfield.                        Nor did  counsel's failure to  seek an  instruction            defining "plant"  prejudice Hadfield.  As  the district court            pointed  out,  Hadfield  might  have been  entitled  to  that            instruction  had he requested it.  But the failure to request            it  did not prejudice him  because the evidence that Hadfield            possessed  well  over  100  plants   was  "overwhelming"  and            included a  videotape showing  rooms full of  living, growing            plants.  In addition,  permitting the jury to use  its common            understanding  of  what  a  plant  is  to  determine  whether            Hadfield  possessed more  than 100  marijuana plants  was not            erroneous.   Cf.  United States  v. Eves,  932 F.2d  856, 860                         ___  _____________     ____            (10th Cir.) (there was no evidence that Congress intended the            term marijuana  "plant" to be  construed "other  than by  its            plain and ordinary dictionary meaning"), cert. denied, 112 S.                                                     ____________            Ct. 236 (1991).3                                            ____________________            3.  Although   Hadfield   alleges   that   the   "scientific"            definition  of  "plant"  should  control, at  trial  his  own            botanical expert defined  a plant to include seeds.  Evidence            submitted  at trial  showed  that law  enforcement  officials            found  a number  of bottles  or vials  of marijuana  seeds on            Hadfield's property.   Although  the seeds were  not counted,            applying  the  definition  used  by   Hadfield's  own  expert            obviously would  have increased, and not  reduced, the number            of marijuana plants that the jury counted.  Thus, it seems to            us that Hadfield's attorney  rendered effective assistance of                                                  _________            counsel  by  not seeking  an  instruction  defining the  term            "plant" as a botanist would.                                            -7-                      Finally, Hadfield claims that his counsel's failure            to advise him before  trial that he might receive  a sentence            enhancement for being  a career offender prejudiced  him.  He            states that he  believed that his  maximum sentence would  be            five years and that he might have sought to plea bargain with            the  government if  had  he known  that  he might  receive  a            sentence of  twenty years.   Regardless whether  Hadfield was            entitled  to  pre-trial  notice  that   the  career  offender            provisions  were applicable,  or whether  a plea  bargain was            even   possible,  Hadfield's  argument  founders  on  factual            inaccuracy.   During  his pre-arraignment  detention hearing,            the government's attorney  first reviewed Hadfield's criminal            record  and  the  potential  sentences he  would  receive  if            convicted as charged.   She then stated that the  first count            of  the indictment  "charges him  with, specifically  with an            enhanced penalty  provision,  one hundred  or more  marijuana            plants.  And on that count, statutorily he is facing at least            a maximum  of twenty years imprisonment."  Thus, before trial            Hadfield knew that  the issue  of his  prior convictions  was            important,  even  if  no  specific reference  to  the  career            offender guidelines was  made.   He also knew  that he  might            receive  up to  twenty years  in prison  if convicted  of the            marijuana  offense.   His  failure to  seek  a plea  bargain,            therefore, cannot  be attributed to  ignorance respecting the            lengthy   prison  sentence  awaiting  him.    Therefore,  his                                         -8-            counsel's  failure to  inform  him of  the correct  potential            sentence could not have prejudiced him as he alleges.4                      II.  Constitutional Challenges to 21 U.S.C.   841                           ____________________________________________                 Hadfield claims  that his  conviction under 21  U.S.C.              841(a)(1) and  (b)(1)(C) violated  his due process  and equal            protection rights.  He alleges that the statute  is arbitrary            as applied to  him because the  marijuana he possessed  could            have  been weighed, but was not, and because he was convicted            for possessing a certain number of plants even though not all            of  those  plants  would   survive  to  maturity  or  produce            marketable  marijuana.    He  also claims  that  the  statute            provides  for disparate  sentences  for controlled  substance            offenders.  If  he had  possessed less than  50 kilograms  of            marijuana, he would have been sentenced to a maximum sentence            of five  years under section  841(b)(1)(D).  But,  because he            possessed  plants, he  was subject  to a  twenty-year maximum            sentence under  section 841(b)(1)(C), even  though the number            of plants he possessed would amount to less than 50 kilograms                                            ____________________            4.  In any event, as  both the court and the  government have            emphasized,   the  evidence   that  Hadfield   had  possessed            marijuana was  overwhelming, and,  given his  criminal record            (which  he  did not  contest),  the  guidelines provided  for            mandatory enhancement of his sentence.  Thus, no plea bargain            was  possible  that  would  have  relieved  Hadfield  of  the            sentencing  consequences of  his criminal  record.   For that            reason,  and because  criminal offenders  have no  "right" to            plea bargain with the  government, see Weatherford v. Bursey,                                               ___ ___________    ______            429 U.S. 545, 561 (1977), we reject Hadfield's  general claim            that  the failure to plea  bargain with him  denied him equal            protection of the law.                                         -9-            of  marijuana  under  the  drug  equivalency  tables  in  the            Sentencing Guidelines.                        Case   law  makes   clear  that   Hadfield's  equal            protection  and due  process claims are  without merit.   The            provision of  the statute under which  Hadfield was convicted            stated essentially  that the  maximum sentence  for knowingly            possessing with intent to  distribute, "100 or more marihuana            plants, regardless of weight," would be twenty years.  See 21                                                                   ___            U.S.C.    841(a)(1), (b)(1)(C) & (D).  That language has been            found to have been intended to  punish marijuana growers more            harshly than  mere possessors  of marijuana, and  the greater            punishment  of  marijuana growers  has  been  sustained as  a            rational,  hence  constitutionally  permissible,  legislative            goal.  See,  e.g., United  States v. Osburn,  955 F.2d  1500,                   __________________________    ______            1507-09 (11th  Cir.) (rejecting  the same arguments  as those            presented  here, the  court found  that section  841  did not            violate due process because Congress had rationally based its            sentencing scheme  on the  number of  plants  rather than  on            their  weight in an attempt  to "halt the  problem earlier in            the cycle, making it less likely that the  drug would ever be            distributed to the public"), cert. denied, 61 U.S.L.W. 3261 &                                         ____________            3264  (1992); United States v.  Lee, 957 F.2d  778, 784 (10th                          _____________     ___            Cir. 1992)  (rejecting the same arguments  as those presented            here,  the  court  upheld  section 841  on  equal  protection            grounds  because the  statute  reflects  Congress's  rational                                         -10-            intent to punish marijuana growers "by the scale or potential            of  their operation  and not  just the  weight of  the plants            seized  at a  given  moment"; "the  cultivation of  marijuana            plants creates a greater  potential for abuse than possession            of  harvested  marijuana"  since  there "would  be  no  dried            marijuana unless there were marijuana plants").5                      Moreover,  Hadfield's use  of the  drug equivalency            tables  in  the  Sentencing  Guidelines   to  illustrate  the            disparity in  treatment of offenders  under section 841  is a            red herring.  First,  he assumes that the  equivalency tables            may be used  to convert  numbers of plants  into weights  for            purposes  of  conviction  for controlled  substance  offenses            under  section 841.    However, the  equivalency tables  were            devised  for a  completely different  purpose.   See U.S.S.G.                                                             ___            Manual  (1988),     2D1.1,  commentary,  note  10  (the  drug            equivalency tables provide help in applying the Drug Quantity            Table,  which  sets  the   base  offense  level  for  certain            offenses,  by equating  substances not specifically  named in            the statute to those named in the statute, and in determining            a single offense level  for offenders convicted of possessing                                            ____________________            5.  The  only cases  Hadfield cited  to support  his specific            claim that section 841(b)(1)(C)  violated his due process and            equal protection rights were  the district court decisions in            the Osburn and  Lee cases.  See United States  v. Osburn, 756                ______      ___         ___ _____________     ______            F.  Supp. 571 (N.D.  Ga. 1991); United States  v. Lee, 762 F.                                            _____________     ___            Supp. 306  (D. Kan. 1991).  Both  of those cases were vacated            on appeal  in  the decisions  cited  above in  this  opinion.            Thus, Hadfield's claim is without support in precedent.                                         -11-            differing controlled substances  by converting the  different            drugs to  quantities of only one  type of drug).   Second, in            actuality  Hadfield is  attempting  to argue  that  marijuana            growers  and  possessors  of  marijuana  are,  or  should  be            regarded  as,  similarly situated  offenders.    But, as  the            Osburn  and Lee cases make clear,  marijuana growers and mere            ______      ___            possessors of marijuana are  not similarly situated offenders                                         ___            under the statute.   Consequently, their disparate  treatment            under the statute  does not  amount to a  violation of  equal            protection.                    Hadfield  further argues  that the  statute is  void for            vagueness as applied to  him because the term "plant"  is not            defined.  The district court found that the alleged ambiguity            did  not have  "constitutional dimensions"  because the  term            "plant" is used only in the penalty provisions of section 841            and  because there was "no  doubt that the statute explicitly                                                               __________            forbids possession  of marijuana with  intent to distribute."            Without doubt,  Hadfield  knew  that  growing  marijuana  was            illegal.  As the government pointed out, the covert nature of            Hadfield's  marijuana cultivation  showed  that  he was  well            aware  that  his activity  was  illegal.   Moreover,  without            deciding whether vagueness in  the sentencing provisions of a            statute has constitutional implications,  we note that in his            response to  the presentence investigation  report Hadfield's            counsel  conceded that  Hadfield  possessed  between  100-199                                         -12-            marijuana  plants.  Thus, there  was also no  ambiguity as to            whether Hadfield's conduct came within the penalty provisions            of section 841(b) for purposes of sentencing him.  Therefore,            Hadfield's allegation that the statute was void for vagueness            as applied to him is meritless.  See United States v. Speltz,                                             _________________    ______            733 F. Supp.  1311, 1312  (D. Minn. 1990)  (the court  denied            that the term  'marijuana plants' could be "susceptible to so            many interpretations that  a person of ordinary  intelligence            could not  know what conduct  is prohibited," and  also found            that the  defendant "clearly knew that  growing the marijuana            plants in his basement was prohibited conduct." ), aff'd, 938                                                               _____            F.2d 188 (8th Cir. 1991).                   Finally,   Hadfield  contends  that  there  is  "extreme            disproportionality between  the  sentence imposed  under  the            Sentencing Guidelines  and the  statutory maximum for  a case            involving fifty kilos  or less of marihuana."  This statement            does  not  explain  precisely  which  sentences  Hadfield  is            contrasting.   The government interprets  Hadfield's argument            to challenge the career offender provisions of the Sentencing            Guidelines since  it was the application  of those provisions            that actually increased Hadfield's  potential sentence to the            statutory maximum.  The court appears to have interpreted the            contention  as a  challenge to  sentencing under  section 841            alone.   Under  either  analysis, Hadfield's  argument fails.            The  circuit  courts of  appeals  have  sustained the  career                                         -13-            offender  guidelines  against  challenges  under  the  Eighth            Amendment.  See, e.g.,  United States v. John, 936  F.2d 764,                        ___  ____   _____________    ____            766  n.2 (3d  Cir. 1991);  United States  v. Foote,  920 F.2d                                       _____________     _____            1395,  1401-02 (8th Cir. 1990), cert. denied, 111 S. Ct. 2246                                            ____________            (1991); United  States v.  Newsome, 898  F.2d 119,  122 (10th                    ______________     _______            Cir.),  cert. denied,  111 S.  Ct. 207  (1990).   And Supreme                    ____________            Court precedent shows  that Hadfield's fifteen-year  sentence            under  section  841,  which  is  five  years lower  than  the            statutory maximum, is valid  under the Eighth Amendment.   In            Hutto v. Davis, 454 U.S. 370 (1982) (per curiam), the Supreme            _____    _____            Court reaffirmed  the principle  that  federal courts  should            only  reluctantly  review  statutorily  prescribed  sentences            under  the   Eighth  Amendment  and  that   overturning  such            sentences should  be "exceedingly rare" occurrences.   Id. at                                                                   ___            370 (citation  omitted).  Given the  Court's determination in            Hutto that a sentence of forty years in prison for possessing            _____            with  intent  to  distribute  nine ounces  of  marijuana  was            constitutional, we  are  sure  that  Hadfield's  sentence  of            fifteen years  for possessing well over  100 marijuana plants            with intent to distribute is constitutional as well.                 III.  Constitutional Challenge to Sentencing Guidelines                       _________________________________________________                 Hadfield claims that  the career offender provisions  in            section    4B1.1   of    the   Sentencing    Guidelines   are            unconstitutional and violate 21 U.S.C.   851 because  they do            not require that  an offender be  notified before trial  that                                         -14-            those provisions  will be used in  determining the offender's            sentence.6     Section  851(a)(1)   states  that   no  person            convicted of an offense under section 841 "shall be sentenced            to  increased punishment  by  reason  of  one or  more  prior            convictions, unless  before trial,  . .  . the  United States            attorney  files an information .  . . stating  in writing the            previous   convictions  to   be  relied   upon."     Hadfield            erroneously reads this language  to require the government to            give  pre-trial notice  to repeat  offenders in all  cases in            which the  career offender guidelines are  applied.  However,            the  words "increased punishment" in section 851 do not refer            to enhancements  of base offense level  under the Guidelines,            but instead  to the imposition of a sentence in excess of the                                                         ________________            statutory maximum.    See United States v. Sanchez,  917 F.2d            _________________     _________________    _______            607,  616  (1st Cir.  1990), cert.  denied,  111 S.  Ct. 1625                                         _____________            (1991).  Because  the government did not file the information                                            ____________________            6.  Hadfield also alleges that the drug equivalency tables in            section 2D1.1 of the Guidelines are unconstitutional  because            they arbitrarily equate one marijuana plant with 100 grams of            dried marijuana.   The  district court correctly  declined to            consider his argument because  the equivalency tables did not            affect Hadfield's sentence.  Although the drug quantity table            in section  2D1.1 would  have given Hadfield  a base  offense            level of 18 for having possessed 20-39 kilograms of marijuana            or 200-399 marijuana plants, ultimately that computation  was            not  used because the offense level given in section 4B1.1 of            the Guidelines was  greater.  See  U.S.S.G. Manual (1988),                                             ___            4B1.1 ("If the offense  level for a career criminal  [subject            to  a maximum sentence of  twenty years] is  greater than the            offense  level otherwise  applicable,  [the  higher]  offense            level shall apply.").  The offense level and criminal history            category   given  in  section   4B1.1  determined  Hadfield's            sentence guideline range.                                           -15-                                          15            in Hadfield's case, it sought only the maximum sentence under            section  841 for  Hadfield's  offense, i.e.  twenty years  in            prison,  rather than  the thirty  years that  otherwise would            have  been  permissible for  repeat  offenders.   Thus,  even            though  Hadfield's base  offense level  under  the Sentencing                               ___________________            Guidelines increased (relative to what it would have been for            the marijuana conviction  by itself) by  virtue of his  prior            convictions,  the  convictions were  not  used  to justify  a            sentence of greater than twenty years, the statutory maximum.            Furthermore,  the  sentence  arrived  at  under  the   career            offender guidelines was within  the statutory maximum.  Thus,            neither section 851 nor the  Constitution was violated by the            government's failure to give Hadfield pre-trial notice of its            intent to use those convictions for sentencing purposes.  See                                                                      ___            id.              ___                 Nor are the career offender provisions of the Guidelines            constitutionally defective  because they do  not require pre-            trial notice  that the provisions will be used in sentencing.            Cf. United States v.  Craveiro, 907 F.2d 260, 264  (1st Cir.)            _________________     ________            (the failure of the Armed Career Criminal Act to require pre-            trial notice  that an  offender's sentence could  be enhanced            because of prior convictions  did not violate defendant's due            process or equal protection rights), cert. denied, 111 S. Ct.                                                 ____________            588  (1990).    Hadfield's presentence  investigation  report            advised him well before sentencing that his prior convictions                                         -16-                                          16            would result in an increased base offense level under section            4B1.1  of  the Guidelines,  and  the  report described  those            convictions.    Accordingly,   Hadfield  was  afforded  ample            opportunity to challenge the use of those convictions, which,            as the district court observed, satisfied the requirements of            due process.                   IV.  Remaining Claims                      ________________                    Although the district court departed downward because            of  Hadfield's military  service  and the  forfeiture of  his            property,  Hadfield   faults  the  district   court  for  not            departing  further downward on the basis of the "true weight"            of  the marijuana he possessed.   We have  no jurisdiction to            consider that claim, and thus  decline to do so.   See United                                                               __________            States v. Pomerleau, 923 F.2d 5,  6 (1st Cir. 1991) ("The law            ______    _________            in  this circuit  is crystal clear  . .  . that  a sentencing            court's  decision  not  to  depart  from  the  guidelines  is                               ___            unappealable. .  . .  By the  same token, .  . .  we have  no            jurisdiction  to review  the extent  of a  downward departure                                         ______            merely because  the affected  defendant is dissatisfied  with            the  quantification  of  the  district  court's generosity.")            (citations  omitted; emphases  in original).7   Although  the                                            ____________________            7.  We note that it  is not clear whether the  court actually            declined to depart downward  for the reason now proffered  by            Hadfield  in  its  original  sentencing  decision.    In  his            response  to the presentence investigation report, Hadfield's            attorney adopted  the probation  officer's suggestion  that a            downward departure  might be  warranted on the  basis of  the            alleged  sentencing  disparities  for   offenders  possessing                                         -17-                                          17            question of our power to review downward departures generally            arises on direct appeal, we  see no reason why the  answer to            that  question  should be  any  different  in response  to  a            section 2255 motion.                   Finally, Hadfield  contends that the court  erred in not            granting him  an evidentiary hearing to  determine the actual            number of marijuana plants he possessed, the effectiveness of            his counsel and the  adequacy of the notice  to him that  the            career offender provisions of the Guidelines would be used to            sentence him.   Those issues involved  either legal questions            or factual issues that could be  resolved on the basis of the            record.  Accordingly, no material fact remained for the court            to determine, and no evidentiary hearing was necessary.   See                                                                      ___            28  U.S.C.  2255; United States v. DiCarlo, 575 F.2d 952, 954                              _____________    _______            (1st Cir.), cert. denied, 439 U.S. 834 (1978).                        ____________                                     CONCLUSION                                     __________                 The decision of the district court is affirmed.                                                         ________                                            ____________________            equivalent weights  of  dried and  plant marijuana.   But  he            failed to argue that point at the sentencing hearing, and the            court  did  not decide  the  issue,  although the  government            suggests,  without record  citation,  that it  did.   In  any            event,  the  court  stated,  in its  decision  on  Hadfield's            section  2255  motion,  that Hadfield's  claim  for  downward            departure had no  merit since  it was not  authorized by  the            Sentencing Guidelines.                                           -18-                                          18
