
USCA1 Opinion

	




          November 22, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1495                                    UNITED STATES,                                      Appellee,                                          v.                                  ALFONSO A. BLANCO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Alfonso A. Blanco on brief pro se.            _________________            Edwin  J. Gale,  United States  Attorney,  Margaret E.  Curran and            ______________                             ___________________        Kenneth P.  Madden, Assistant  United States  Attorneys, on brief  for        __________________        appellee.                                 ____________________                                 ____________________                      Per Curiam.   Alfonso  A. Blanco appeals  pro se  a                      __________                                ___ __            district court order  denying his motion for  modification of            sentence under 18 U.S.C.   3582(c)(2).  We affirm.                                          I.                                          I.                                          __                      In February  1989,  Blanco  pled  guilty  to  three            counts  of possessing  cocaine  with  intent  to  distribute,            violations of  21  U.S.C.    841(a)(1)  and (b)(1)(C).    The            district  court  applied  U.S.S.G.     2D1.1  in  determining            Blanco's offense level and, in April 1989, imposed a sentence            of 84  months imprisonment.   On appeal,  we affirmed,  inter                                                                    _____            alia,  the  use  of  a kilogram  of  cocaine  for  sentencing            ____            purposes - - despite Blanco's contentions that the charges to            which  he pled guilty involved only 125  grams of cocaine - -            because  the   additional  drug   quantities  were   properly            countable  under  U.S.S.G.    1B1.3(a)  as part  of  the same            conduct, scheme, or plan as  the convicted offenses.   United                                                                   ______            States v.  Blanco, 888 F.2d  907, 909  (1st Cir.  1989).   In            ______     ______            April 1992, Blanco  filed a pro se motion  to vacate sentence                                        ___ __            under 28  U.S.C.    2255 alleging  ineffective assistance  of            counsel,  that his  plea  was involuntary,  and  that he  was            deprived his presentence report rights under Fed. R. Civ.  P.            32.   The district court  denied the motion and  we affirmed.            United States v. Blanco, No. 92-2024 (1st Cir. Jun. 9, 1993).            _____________    ______            In December 1992,  Blanco filed this motion  for modification            alleging that  he  was entitled  to a  reduction in  sentence            because of  a November  1992 amendment to  the commentary  to            guideline    2D1.1.   Blanco contended  that under  Amendment            447, App. C at 269-71,  which revised application note1 12 to              2D1.1, his  offense level should be reduced  because he was            not  reasonably capable of  producing a kilogram  of cocaine.            In reply to the government's opposition to the motion, Blanco            asserted,  for  the   first  time,  that  his   attorney  was            ineffective in failing to raise the "capability" defense.2                                            ____________________            1.  Note 12 of the commentary to   2D1.1 deals with types and            quantities of drugs not specified in the count  of conviction            which  may  be  considered,  under     1B1.3(a)(2)  (relevant            conduct), in  determining the  offense level.   The  revision            upon which Blanco relies states, in pertinent part:                 In an offense involving negotiation to traffic in a                 controlled substance, the  weight under negotiation                 in an  uncompleted distribution  shall  be used  to                 calculate  the applicable  amount.   However, where                 the court finds  that the defendant did  not intend                 and was  not  reasonably capable  of producing  the                 negotiated amount, the court shall exclude from the                 guideline calculation the amount that it finds  the                 defendant did  not intend  to produce  and was  not                 reasonably capable of producing.            The second sentence is identical to one formerly appearing in               2D1.4 (attempts  and  conspiracies),  comment.  (n.1),  by            virtue of  Amendment 136,  effective November  1, 1989.   See                                                                      ___            App.  C at  64.    Amendment  447 deleted     2D1.4  and  its            application  notes and  moved much  of that  text into  the              2D1.1 commentary.  App. C at 270.                 In  April  1989,  when Blanco  was  sentenced,    2D4.1,            comment.  (n.1) provided, in  part: "Where the  defendant was            not reasonably  capable of  producing the negotiated  amount,            the court  may depart  and impose a  sentence lower  than the                       ___            sentence that would otherwise  result."  (Emphasis supplied).            Amendment 136 replaced  this sentence by the  second sentence            quoted  above, and  that  replacement  was  carried  over  in            Amendment 447.             2.  Such  claims  are outside  the  scope of  a    3582(c)(2)            motion.  Even if we were to  construe this motion as a   2255            petition, since,  as the  discussion below  indicates, Blanco                                         -3-                      The   district   court   denied  the   motion   for            modification  of  sentence reasoning  that  the  amendment on            which Blanco relied  was not retroactive  because it was  not            specifically   listed  in   guideline   policy  statement                1B1.10(d).   That, the  district  court decided,  effectively            "closed  the  door"  on the  retroactive  application  of the            amendment to   2D1.1.  Blanco's principal  argument on appeal            is  that  he was  improperly  sentenced  on  the basis  of  a            negotiated-for quantity of  cocaine, a kilogram, that  he was            incapable of producing.                                         II.                                         II.                                         ___                      A  sentence  may be  reduced  only under  extremely            narrow circumstances.  18 U.S.C.   3582(c).  "[T]he court may            not modify a  term of imprisonment once it  has been imposed"            unless  "such a reduction  is consistent with  the applicable            policy  statements issued by  the Sentencing Commission."                3582(c)(2).    Contrary  to  Blanco's  argument  that  policy            statements, such as    1B1.10, are no more  than interpretive            guides,   the  Supreme  Court  has  made  plain  that  "[t]he            principle  that the Guidelines  Manual is binding  on federal            courts  applies as  well to policy  statements."   Stinson v.                                                               _______            United States, 113 S. Ct.  1913, 1917 (1993), citing Williams            _____________                                        ________                                            ____________________            has   no  legal  right  to  benefit  from  the  post-sentence            amendments to   2D1.1, no prejudice resulted from the alleged            ineffective assistance.   Hill v.  Lockhart, 474 U.S.  52, 59                                      ____     ________            (1985).                                         -4-            v. United States,  112 S. Ct. 1112, 1119  (1992) ("[A] policy               _____________            statement  [which] prohibits a  district court from  taking a            specified  action .  . .  is  an authoritative  guide to  the            meaning of the applicable guideline.").                      Moreover,  "[i]n addition to the duty to review and                                                       ____            revise the  guidelines, Congress  has granted the  Commission            the unusual  explicit  power to  decide whether  and to  what                                   _____            extent  its  amendments  reducing  sentences  will  be  given            retroactive effect.  28 U.S.C.   994(u).  This power has been            implemented  in  Guideline    1B1.10,  which  sets  forth the            amendments  that justify  sentence  reduction."   Braxton  v.                                                              _______            United  States, 111  S. Ct.  1854,  1858 (1991).   In  United            ______________                                         ______            States v. Havener, 905  F.2d 3, 7 (1st  Cir. 1990), we  noted            ______    _______            that policy statement   1B1.10 "expressly forbids retroactive            application"  of  an  amendment not  listed  in    1B1.10(d).            Section  1B1.10(a) provides, in  pertinent part: "If  none of            the  amendments listed  in subsection  (d)  is applicable,  a            reduction  in the defendant's  term of imprisonment  under 18            U.S.C.    3582(c)(2)  is not  consistent  with this  policy."            Neither Amendment 447 nor  Amendment 136, both  post-sentence            commentary amendments to   2D1.1,  see n.1, are included in                                                 ___            1B1.10(d)'s list  of amendments  intended to  be retroactive.            Thus,  as  the  district  court  correctly  found,     1B1.10                                         -5-            controls.3.   Since the    3582(c)(2) relief  sought here  is            triggered  only if a  subsequent amendment to  the Guidelines            appears  on the    1B1.10(d) list,  it would  be inconsistent            with the  Commission's policy statements  to apply  Amendment            447 or  136 retroactively  and to  reduce Blanco's  sentence.            See  United States  v. Avila,  997 F.2d  767, 768  (10th Cir.            ___  _____________     _____            1993); United States  v. Wilson, 997 F.2d 429,  431 (8th Cir.                   _____________     ______            1993); Desouza v. United States,  995 F.2d 323, 324 (1st Cir.                   _______    _____________            1993).                      Accordingly,   the   district  court's   order   is            affirmed.              _________                                            ____________________            3.   It is also clear, see n.2 above, that Amendments 447 and                                   ___            136  are more  than  mere  clarifications of     2D1.1.   See                                                                      ___            Havener, 905  F.2d at 5;  see also Desouza v.  United States,            _______                   ___ ____ _______     _____________            995 F.2d 323, 324 (1st Cir. 1993).                                         -6-
