
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2024                                              ALFONSO A. BLANCO,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     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 Cyr, Circuit Judges.                                             ______________                                 ___________________               Alfonso A. Blanco on brief pro se.               _________________               Lincoln  c.  Almond,  United  States  Attorney,  Margaret E.               ___________________                              ___________          Curran and Kenneth P. Madden,  Assistant United States Attorneys,          ______     _________________          on brief for appellee.                                  __________________                                     June 9, 1993                                  __________________                      Per Curiam.  The appellant, Alfonso Blanco, pleaded                      __________            guilty in  1989 to  three counts  of possessing  cocaine with            intent to distribute.  The government had also charged Blanco            with two counts  of attempted distribution, and  one count of            conspiracy to  distribute, but  it dropped  those charges  in            return  for  Blanco's  guilty  plea.    The  district  court,            following the  Sentencing Guidelines, sentenced Blanco  to 84            months in prison.  Blanco appealed, challenging the sentence,            and we affirmed.  United States v. Blanco, 888 F.2d  907 (1st                              _____________    ______            Cir. 1989).                 In 1992  Blanco filed a  pro se "Motion for  Findings of                                          ______            Fact  Pursuant  to  FRCP  32  and  Modification  of  Sentence            Pursuant  to  28  United  States Code  Section  2255."    The            district court denied  the motion, and this  appeal followed.            We affirm.                 Blanco's  primary  claim  is that  his  guilty  plea was            "involuntary" because  he received ineffective  assistance of            counsel  --  specifically,  because   his  lawyer  mistakenly            assured him that, if he pleaded guilty, he would receive only            a  twenty-seven  month  prison  sentence.    Although  Blanco            divides his  brief into separate sections  on involuntariness            and ineffective  assistance, the  Supreme Court  has made  it            clear  that where  a  defendant pleads  guilty  on advice  of            counsel,  "the voluntariness of  the plea depends  on whether            counsel's advice 'was within the range of competence demanded                                         -2-            of attorneys in criminal cases.'"  Hill v. Lockhart, 474 U.S.                                               ____    ________            52, 56  (1985) (quoting McMann  v. Richardson, 397  U.S. 759,                                    ______     __________            771  (1970)).      Accordingly,  we   will   treat   Blanco's            involuntariness  and ineffective  assistance  arguments as  a            unit, focusing on the adequacy of counsel's advice.                 In  Hill v.  Lockhart, the  Supreme Court  also  made it                     ____     ________            clear that  the two-part  standard for  evaluating claims  of            ineffective  assistance   of  counsel,  first   announced  in            Strickland v. Washington, 466 U.S. 668 (1984), applies to the            __________    __________            guilty-plea process.  Hill, 474 U.S.  at 57.  The court  must                                  ____            ask: (1)  whether counsel's  advice was  within the  range of            competence demanded of  attorneys in criminal cases,  and (2)            whether the  defendant suffered  "prejudice."  Prejudice,  in            this context, means  "a reasonable probability that,  but for            counsel's  errors, [the  defendant]  would  not have  pleaded            guilty and  would have insisted on  going to trial."   Id. at                                                                   ___            59.                 A  number of  courts have  held that  a lawyer  does not            render ineffective  assistance if,  while  advising a  client            about whether  to plead  guilty, the  lawyer merely  makes an            inaccurate  prediction about  the  expected  sentence.   See,                                                                     ____            e.g., United States v. Arvanitis, 902 F.2d 489, 494 (7th Cir.            ____  _____________    _________            1990); United  States v.  Sweeney, 878 F.2d  68, 69  (2d Cir.                   ______________     _______            1989); United States  v. Turner, 881 F.2d 684,  687 (9th Cir.                   _____________     ______            1989).   Cf.  Iaea v.  Sunn,  800 F.2d  861 (9th  Cir.  1986)                     ___  ____     ____                                         -3-            (though "mere inaccurate prediction" would not be ineffective            assistance, lawyer's "gross mischaracterization of the likely            outcome,"  combined  with  erroneous  advice  about  possible            effects  of  going  to  trial,   fell  "below  the  level  of            competence required of defense attorneys").                   We  need  not  determine whether  the  lawyer's  lack of            clairvoyance here fell below the level of competence required            of  defense  attorneys,  because we  conclude  that  Blanco's            allegations  were  insufficient  to   satisfy  the  prejudice            requirement.  Blanco never even told the district court that,            but for counsel's  mistake, he would have  pleaded not guilty            and insisted on going to trial, Hill v. Lockhart, 474 U.S. at                                            ____    ________            60,1   and he  has given  us no  reason to  believe that  the            faulty estimate of his sentence might actually have "affected            the outcome of  the plea process" in  that way.  Id.  at 59.                                                              ___            The trial judge told Blanco in no uncertain terms at the plea            hearing  that he  would  not be  able  to determine  Blanco's            sentence  until   after  the  presentence   report  had  been                              _____            completed,  that in passing  sentence the court  would not be            bound  by the prosecutor's recommendation, and that the court            could even, in appropriate circumstances, depart upwards from            the Sentencing Guidelines range.   Blanco told the court that            he  understood these conditions.  He  then admitted his guilt                                            ____________________            1.  Blanco  made this  assertion for  the first  time in  his            appellate brief.                                         -4-            under oath (and even today does not deny it), and received  a            sentence which, though  longer than his lawyer's  prediction,            still was substantially shorter than the sixty-year statutory            maximum about  which the  court had also  warned him.   These            facts vitiate any contention that Blanco relied solely on his            lawyer's optimism  in deciding  whether to  plead guilty,  or            that he  would have pleaded not guilty had he received a more            pessimistic (and accurate) estimate from counsel.                 Blanco says that  his lawyer  also rendered  ineffective            assistance  by failing  to prepare  adequately  for a  trial.            According  to Blanco, the lawyer neither conducted a pretrial            investigation  nor filed all the "required" pretrial motions.            A  claim of ineffective preparation requires the Section 2255            petitioner to  make  "specific  allegations  concerning  'the            facts or defenses  which counsel would have uncovered' had he            been prepared."  United States v. Johnson,  624 F.Supp. 1191,                             _____________    _______            1194 (E.D.Pa.  1986) (quoting  United States  v. Thomas,  470                                           _____________     ______            F.Supp. 968, 972 (E.D.Pa. 1979)).   Blanco says only that his            lawyer's inaction  "precluded the  mounting  of an  effective            entrapment  defense."  This allegation, however, is undone by            (1) Blanco's failure to state any facts which would show that                                              _____            the lawyer could have come  up with an entrapment defense had            he  worked harder,  and  (2)  the  lawyer's  statement,  made            without contradiction in Blanco's presence at  the sentencing            hearing, that "[a]fter reviewing the evidence, after speaking                                         -5-            with Mr. Blanco  at great length .  . . we realized  that [an            entrapment defense] was to no avail."                 Finally, Blanco claims that the district  court violated            Fed.  R. Crim. P. 32 when it sentenced him.  Rule 32(a)(1)(A)            requires the trial court to "determine that the defendant and            defendant's  counsel have  had the  opportunity  to read  and            discuss  the  presentence  investigation report"  before  the            court imposes  sentence.  Blanco says that the district court            did not satisfy this  requirement because it never  asked him            (1)  whether he  had  read  the report,  (2)  whether he  had            discussed it  with his lawyer,  and (3) whether he  wanted to            challenge any facts in  it.  See  United States v. Rone,  743                                         ___  _____________    ____            F.2d 1169, 1174  (7th Cir. 1984) (requiring  sentencing court            to ask those three questions).                 Unlike  the  Seventh  Circuit,   this  court  has  never            demanded that the district court comply with Rule 32(a)(1)(A)            by   asking  such  specific   questions.    Rather,  "binding            precedent  in  this  circuit  has  directed  that  if  it  is            abundantly  clear  from  the  sentencing  hearing  that  both            defendant and his counsel are familiar with the report, a new            sentencing hearing will  not be mandated,  even if the  court            failed  to  directly  inquire whether  the  defendant  had an            opportunity to review the  report. . .  ."  United States  v.                                                        _____________            Manrique, 959 F.2d  1155, 1157-58 (1st Cir. 1992).   See also            ________                                             ________            United States v. Serino, 835 F.2d 924, 931 (1st Cir. 1987).            _____________    ______                                         -6-                 According to the transcript of the sentencing hearing in            this case, the district court certainly had "abundant" reason            to determine  that Blanco's lawyer had received  and read the            presentence  investigation report.    The lawyer  stated  his            objections to the report so specifically as to leave no doubt            of his familiarity with its contents.                   Although the  discussion at  the sentencing  hearing did            not reveal to the district  court whether Blanco had seen the                                                      ______            presentence report, we  know that  he did:  his Section  2255            motion  tells us that  "[p]rior to sentencing  the Petitioner            and  his  counsel  reviewed  the  Pre-sentence  Investigation            Report prepared  by the United States Probation  Office."  In            similar circumstances, this court recently found no violation            of Rule  32(a)(1)(A), reasoning  that "[a]s  the record  well            establishes that defense counsel was intimately familiar with            the [presentence  report], we  will not  assume that  defense            counsel  did not discuss  so critically important  a document            with  his  client,  especially  since  appellant  claims   no            dereliction."   United States  v. Cruz, 981  F.2d 613, 619-20                            _____________     ____            (1st Cir. 1992).                 Even if the district court did violate Rule 32(a)(1)(A),            its  lapse is not  corrigible in this  collateral proceeding.            The Supreme Court  has held that a trial  court's failure "to            ask a  defendant represented  by an  attorney whether he  has            anything to say  before sentence is imposed is  not of itself                                         -7-            an error  of the  character or magnitude  cognizable under  a            writ of habeas corpus."  Hill v. United States, 368 U.S. 424,                                     ____    _____________            428 (1962).  See also  Padilla Palacios v. United States, 932                         ________  ________________    _____________            F.2d 31,  36 n.8 (1st Cir. 1991).   The Supreme Court in Hill                                                                     ____            v.  United States was referring to  the trial court's general                _____________            duty, under Rule  32(a)(1)(C), to give a pleading defendant a            chance to  speak  before sentencing,  but we  think that  the            principle  also suits  the court's  more specific  obligation            under  Rule  32(a)(1)(A).   The  failure to  ask  a defendant            whether he  has had the  opportunity to read and  discuss the            presentence  investigation report, like the failure to hear a            defendant's  statement in mitigation  of his sentence,  is an            error  which  in  itself   "is  neither  jurisdictional   nor            constitutional.    It  is  not  a  fundamental  defect  which            inherently  results in a complete miscarriage of justice, nor            an omission inconsistent with the rudimentary demands of fair            procedure."  Hill v. United States, 368 U.S. at 428.                         ____    _____________                 The Supreme Court in Hill left open the possibility that                                      ____            Section 2255  relief might  "be available if  a violation  of            Rule  32(a)  occurred  in the  context  of  other aggravating            circumstances."  Id.  The underlying concern is "that matters                             ___            in mitigation  of sentence  should be  fairly presented  to a            sentencing judge prior to rendition of final sentence."  Katz                                                                     ____            v. King, 627 F.2d  568, 576 (1st Cir. 1980).   Thus, in Green               ____                                                 _____            v.  United States,  313 F.2d  6, 9-10  (1st Cir.  1963), this                _____________                                         -8-            court vacated the  denial of a Section 2255  motion where the            petitioner  claimed that  he  had been  denied  his right  to            address the court before sentencing, and that as a result the            court   did  not  learn   "of  several  matters   unknown  to            [petitioner's]  counsel  which  would  have  corrected  false            impressions implanted in the mind  of the court by remarks of            the assistant district attorney."                 Blanco cannot build  upon this rock.  He  tells us that,            when he reviewed the  presentence report with his  lawyer, he            registered objections  to  the amount  of cocaine  reportedly            involved, and  to the  decision not to  give him  a two-level            Sentencing   Guidelines   adjustment    for   acceptance   of            responsibility.2   The lawyer  presented these objections  to            the  district court  (and  later, on  direct appeal,  to this            court).  Since  the "matters in mitigation" were presented to            the district  court  before it  passed sentence,  we find  no            "aggravating circumstances"  that might warrant  Section 2255            relief.                 Affirmed.                 _________                                            ____________________            2.   Blanco also says that he objected to the manner in which            the   presentence   report    "inaccurately   portrayed   his            involvement  in the  offense activity."    However, he  never            described  how  the  report was  inaccurate,  nor  stated the                       ___            factual  objections he might  have presented to  the district            court had he been given the opportunity.                                         -9-
