                    [NOT FOR PUBLICATION]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-
