
USCA1 Opinion

	




          March 31, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1769                                  ALVARO ROJO-ALVAREZ,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                    [Hon. Gene Carter, Chief U.S. District Judge]                                       _________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Alvaro Rojo-Alvarez on brief pro se.            ___________________            Jay  P. McCloskey,  United States  Attorney, and F.  Mark Terison,            _________________                                ________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.  Appellant Alvaro Rojo-Alvarez appeals                      ___________            from  the denial of his  motion to vacate  his sentence filed            under  28 U.S.C.   2255.   The motion  essentially raises two            grounds for relief:   (1) government undercover agents posing            as buyers  engaged in  "sentence entrapment" in  violation of            appellant's due process rights  by requesting a larger amount            of  drugs  (30 kilograms  of  cocaine)  than appellant  could            produce; and (2)  counsel provided ineffective assistance  by            not  raising  this  issue at  the  sentencing  hearing.   The            district court  summarily dismissed  the motion on  the basis            that the  drug quantity  question had been  presented to  the            district court  at sentencing and  rejected by this  court on            direct appeal.   See United States v.  Rojo-Alvarez, 944 F.2d                             ___ _____________     ____________            959 (1st Cir. 1991).  The district court also determined that            counsel had  argued the entrapment defense  at the sentencing            hearing.  We affirm the judgment of the district court.                      1.  Sentencing Factor Manipulation.1                          ______________________________                      Appellant argues  that he only had  the capacity to            deliver  9 kilograms  of cocaine,  the amount  the conspiracy            actually produced for the  fictitious buyers.  The government            used  the 30-kilogram  figure, appellant  maintains, only  to                                            ____________________            1.  Because the phrase  "sentence entrapment" is  misleading,            this circuit uses the  term "sentencing factor manipulation."            United  States v. Brewster, 1 F.3d 51, 55 n.5 (1st Cir. 1993)            ______________    ________            (latter   phrase  correctly  puts  emphasis  on  governmental            conduct rather than on a defendant's predisposition to commit            the crime "but for" the government's inducement).            raise his base offense level and, hence, his sentence.  There            is no support in the record for this contention.  It is plain            from the  uncontradicted trial testimony  that appellant  was            not  only  aware, from  the  beginning,  that the  conspiracy            involved  30 kilograms  of  cocaine but  also  was an  active            participant in the negotiations for this amount.                           When, as  now, an offense-level                           enhancement   results  from   a                           matter  that  formed  part  and                           parcel    of    the    original                           negotiations      between     a                           government   agent    and   his                           target,   and   the    criminal                           venture proceeds on that basis,                           a  claim  of sentencing  factor                           manipulation will not lie.            United States v. Brewster, 1 F.3d 51, 55 (1st Cir. 1993).  As            _____________    ________            a  result  of  this   finding,  appellant's  claim  that  the            government's  conduct violated due process necessarily fails.            See United States v. Panitz, 907 F.2d 1267, 1272-73 (1st Cir.            ___ _____________    ______            1990) (conduct  must be so  shocking as to  be "fundamentally            unfair" to amount to a violation of a defendant's due process            rights).                      Finally, to  the  extent that  appellant simply  is            challenging the finding,  for sentencing guideline  purposes,            that his  offense  involved 30  kilograms of  cocaine, he  is            foreclosed  from  raising  this issue  in  a     2255 motion.            First,  we   rejected  this  claim  on   direct  appeal  from            appellant's conviction.  Rojo-Alvarez,  944 F.2d at 965, 971.                                     ____________            "Issues  disposed of on a  prior appeal will  not be reviewed                                         -3-            again by way of a 2255 motion."  Tracey v. United States, 739                                             ______    _____________            F.2d  679, 682 (1st Cir.  1984), cert. denied,  469 U.S. 1109                                             ____________            (1985).   Second, alleged  errors in  the application  of the            guidelines to the facts generally are not cognizable under               2255.  Knight v. United States, 37 F.3d 769, 773-74 (1st Cir.                   ______    _____________            1994).                      2.  Ineffective Assistance of Counsel.                          _________________________________                      Appellant claims that his attorney  failed to raise            the issue of sentencing factor manipulation.  However, as the            district  court noted,  counsel  specifically argued  at  the            sentencing hearing  that  government  agents  should  not  be            allowed  to choose a large  amount of drugs  when a defendant            such  as appellant cannot produce  that amount.   Thus, it is            plain  that  counsel's  conduct  was  more  than  objectively            reasonable.    See Strickland  v.  Washington,  466 U.S.  668                           ___ __________      __________            (1984).  In  any event, because we decide that this issue has            no merit, appellant cannot demonstrate prejudice.  Id.                                                               ___                      Affirmed.                      ________                                         -4-
