
USCA1 Opinion

	




          March 22, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2028                                  ANGEL LUIS FIGUEROA,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Angel Figueroa on brief pro se.            ______________            A.  John Pappalardo,  United  States Attorney,  and  Dina  Michael            ___________________                                  _____________        Chaitowitz, Assistant United States Attorney, on brief for appellee.        __________                                 ____________________                                 ____________________                 Per Curiam.  Angel Luis Figueroa appeals pro se from the                 __________            denial of  a motion  under 28  U.S.C.   2255  to vacate,  set            aside,  or  correct  his  sentence.    In  1990,  upon  being            convicted of  both conspiring and attempting  to possess with            intent to distribute  500 or more grams  of cocaine, Figueroa            was sentenced to  a prison term  of 188  months.  This  court            thereafter  affirmed both  his conviction  and his  sentence.            United  States v. Figueroa,  976 F.2d  1446 (1st  Cir. 1992),            ______________    ________            cert.  denied, 113 S. Ct. 1346 (1993).  Figueroa now advances            _____________            a pair of challenges  to his sentence, claiming that  (1) the            quantity of  drugs  for which  he  was held  accountable  was            improperly  inflated because  of "sentencing  entrapment" and            other reasons, and (2) his base offense level was  improperly            enhanced  by four  levels because  of his  alleged leadership            role.  As a  corollary complaint, he argues that  his counsel            was  ineffective in  failing to  raise these  issues earlier.            Assuming arguendo that such contentions are cognizable in a                       ________            2255  proceeding,  we  find  each of  them  unpersuasive  and            therefore affirm.                 As explained  in greater detail in  our earlier opinion,            Figueroa and his confederates were apprehended as a result of            a   "reverse-sting"   operation  involving   their  attempted            purchase of drugs from an  informant for the Drug Enforcement            Agency  (Estaban Mendoza).  See  id. at 1450-51.   During the                                        ___  ___            course of his  negotiations with Mendoza,  Figueroa discussed            purchasing anywhere from three  to five kilograms of cocaine,            explaining   that   his   organization   had   been   selling            approximately  $6,000 worth  of the  drug per  day in  "dime"            bags.   The  parties  settled upon  an  initial sale  of  two            kilograms, with  $30,000 being  paid up-front and  $10,000 to            follow.  The sum of $29,850 was in fact seized at the time of            arrest.   At sentencing,  the court determined  that Figueroa            was  responsible not only  for the two  kilograms involved in            the attempted  sale, but for an additional three kilograms as            well.  This  latter figure was  reached by extrapolating  the            approximate amount of cocaine  distributed over the course of            the  conspiracy  based  on Figueroa's  acknowledged  sales of            $6,000 per  day.1  Figueroa now contends that it was error to            hold  him  accountable for  five  kilograms  for purposes  of            sentencing.                   The basis for this challenge is amorphous in nature.  In            his petition, Figueroa devotes considerable attention to  the            notion  of   "sentencing  entrapment"  (or,   more  properly,            "sentencing  factor manipulation").  Whatever the theoretical            viability of  such a  doctrine, see, e.g.,  United States  v.                                            ___  ____   _____________            Brewster, 1 F.3d  51, 55  (1st Cir. 1993);  United States  v.            ________                                    _____________            Panet-Collazo, 960  F.2d 256,  262 (1st Cir.),  cert. denied,            _____________                                   ____________                                            ____________________            1.  The  indictment  charged  that  the  conspiracy  occurred            between December 24, 1989 and January 25, 1990.   A DEA agent            testified  that  one  kilogram   of  cocaine  would  generate            approximately $70,000  when distributed in "dime"  bags.  See                                                                      ___            976 F.2d at 1461 n.19.                                         -3-            113 S. Ct.  220 (1992);  United States v.  Connell, 960  F.2d                                     _____________     _______            191,  194-97 (1st Cir. 1992)  (all rejecting such  a claim on            basis  of  facts presented),  the  instant  case provides  no            occasion to address it.   Figueroa's claim in this  regard is            based  on  the  misimpression   that  the  additional   three            kilograms  in  question  were   those  that  he  and  Mendoza            discussed for possible sale during their negotiations (beyond            the  two  kilograms  actually  agreed  upon).    Instead,  as            mentioned, this  figure reflected the quantity  of drugs that            Figueroa had  admitted selling to others  during the previous            month.  Figueroa  specifically disclaims any  suggestion that            the two  kilograms involved  in the  attempted sale  were the            subject of "manipulation."  And any such argument would  have            faltered for the reasons recited in Brewster, 1 F.3d at 55.                                                ________                 In a related  (if inconsistent) vein, Figueroa  contends            that the  evidence was  insufficient to hold  him responsible            for the three kilograms sold  by his organization during  the            course of the conspiracy.  We rejected the identical argument            on  direct  appeal.   Referring to  (Angel) Figueroa  and his            brother Tomas, we stated:                 Tomas, as well as Angel, admitted that $6,000 worth                 of "dime"  bags were  being sold daily  through the                 record   shop   during   the  alleged   conspiracy.                 Although  appellants characterize  these statements                 as  mere "puffery," the  sentencing judge who heard                 the trial  testimony was  entitled to  credit their                 admissions.  The court permissibly extrapolated the                 approximate  amount  of cocaine  distributed during                 the  relevant period  based  on the  sums of  money                 admittedly received.   There was no  clear error in                                         -4-                 the determination of  the quantity  of cocaine  for                 which Angel and Tomas Figueroa were responsible.            976 F.2d at 1460-61 (citations and footnotes omitted).                 Figueroa's challenge to the determination  regarding his            role  in the  offense is  likewise unavailing.   The district            court  held  that  he  was  "an organizer  or  leader"  under            U.S.S.G.    3B1.1(a)  and thus  was  subject to  a four-level            enhancement.    On  appeal,  Figueroa argues  only  that  the            evidence  was insufficient  to establish  that he  occupied a            leadership role.   To  the contrary,  as our  earlier opinion            amply  demonstrates, see  976 F.2d  at 1450-51,  the district                                 ___            court  supportably  found  that  he  "directed  ...  all  the            activities  of  his co-conspirators"  and  that  he was  "the            controlling participant in negotiating the amount [of cocaine            to  be  purchased],  the  price,  and  the  arrangements  for            delivery of the  money to the confidential informant."   App.            44.   "Role  in the  offense" determinations  are subject  to            review only for  clear error.   See, e.g.,  United States  v.                                            ___  ____   _____________            Ruiz-Del Valle, 8 F.3d 98, 104 (1st Cir. 1993).  We find none            ______________            here.                 Finally, as each of Figueroa's central arguments  proves            wanting,  his  subsidiary  allegations regarding  ineffective            assistance of counsel must also fail.                  Affirmed.                    _________                                         -5-
