
USCA1 Opinion

	




        October 29, 1992        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1016                                 MICHAEL F. CORCORAN,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Michael F. Corcoran on brief pro se.            ___________________            Richard  S.  Cohen,  United  States  Attorney,  Nicholas M.  Gess,            __________________                              _________________        Assistant United States Attorney, and Margaret D. McGaughey, Assistant                                              _____________________        United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                       Per  Curiam.   Pro  se appellant  Michael Corcoran                       ___________            appeals from a district  court judgment dismissing his motion            to vacate his conviction and  sentence under 28 U.S.C.  2255.            We affirm.                                          I.                       Corcoran  was convicted  upon pleading  guilty  to            three  counts of  a superseding  indictment that  charged him            with conspiring to possess  with intent to distribute cocaine            and  with  the  substantive  offenses  of   distributing  and            possessing with intent to  distribute cocaine between June 13            and   August  13,   1990.     See   21  U.S.C.     841(a)(1),                                          ___            841(b)(1)(C),  846.   The charges  stemmed  from transactions            between  Corcoran and  various  codefendants  and  undercover            agents  during that  time.   Also indicted  and convicted  on            guilty  pleas   were  five  other  members   of  the  alleged            conspiracy:     Peter  Garuti,  Carmen  Corcimiglia,  Deborah            Corcimiglia, and Warren Williams.1                          The   indictment  generally  alleged  that  Garuti            obtained cocaine from sources  outside Maine and  distributed            it   to   Corcoran   and  Williams.      Corcoran   allegedly            redistributed the cocaine to Carmen Corcimiglia.  On December            13,  1990,  Corcoran pled  guilty  to the  general  charge of            conspiracy  (count  one)  and  the  substantive   charges  of                                            ____________________            1.  Similar charges against a fifth defendant, George  Vokey,            were dismissed.                                         -2-            distributing  cocaine on  September  6 and  12, 1990  (counts            thirteen  and  sixteen).     There  was  no  plea  agreement.            Thereafter, the  probation department prepared  a presentence            report which attributed 1015.53  grams of cocaine to Corcoran            and recommended a  base offense  level of 26.   The  district            court  held  a  presentencing  conference  on  May  7,  1991.            Defense  counsel objected to the  1015.53 grams and argued in            favor of  603.16  grams, although  this  did not  change  the            applicable  base offense  level.   The  government agreed  to            stipulate  to this  amount.   On May  21, 1991,  the district            court held  a sentencing hearing and  accepted a stipulation,            signed by Corcoran and both counsel, which specified that the            total drug  quantity applicable to Corcoran  was 603.16 grams            of a mixture  or substance containing cocaine.   The district            court  sentenced Corcoran  to 59  months imprisonment  plus 4            years  of supervised  release,  and imposed  $150 in  special            assessments.  Corcoran did not appeal his sentence.2                         In October 1991 Corcoran filed a motion  to vacate            his  conviction and  sentence under  28 U.S.C.    2255.   The            motion asserted  three grounds  for relief.   First, Corcoran            claimed that  he did not  understand the consequences  of his            plea  because  he  was  not  made  aware  that  the   federal            Sentencing   Guidelines  mandated  the   inclusion  of  other                                            ____________________            2.  The prison sentences of  the other defendants ranged from            12 to 54 months.                                          -3-            defendants'  conduct  in  calculating   Corcoran's  "relevant            conduct"  for sentencing  purposes.   In elaborating  on this            claim, Corcoran specifically complained that his base offense            level (26) included  drug quantities attributed  to him as  a            result of a statement made  by codefendant Warren Williams to            DEA  Agent Stephen Georges.  This  statement was not produced            to  Corcoran's attorney  until  after  Corcoran pled  guilty.                                            _____            Corcoran claimed that consequently, when he changed his plea,            he  did not know that the drug quantities identified in Agent            George's  report   would  be  included   in  calculating  his            sentence.  This, Corcoran  asserted, rendered his guilty plea            invalid.   Corcoran's second    2255  claim alleged  that his            plea was  invalid because the prosecution  failed to disclose            Agent  Georges'  report  before Corcoran  changed  his  plea,            thereby  violating Corcoran's  right to  exculpatory evidence            and discovery.3  Finally,  Corcoran alleged that his attorney                                            ____________________            3.  Corcoran's  2255  motion incorporated  a letter  that his            counsel  sent   to  the  Assistant   United  States  Attorney            prosecuting the case. The letter stated, in relevant part:                   I  was quite disturbed  to receive your December                   17, 1990  letter enclosing the  four page  typed                   report of Agent Georges which indicates that  it                   was prepared  on October 3,  1990.  That  report                   contains   information   which  was   not   made                   available  to   the  defendant   prior  to   his                   decision  to   plead  guilty  and  which  in  my                   opinion  should have  been.   While  recognizing                   that  this  delay is  certainly  not  your fault                   personally,  I   do  feel  it   is  a  discovery                   violation and  prejudicial to the Defendant  and                   I am requesting  that this report not be used in                   connection  with any  aspect  of  Mr. Corcoran's                                         -4-            rendered  him  ineffective  assistance  by  stipulating  that            603.16 grams of cocaine were attributable to Corcoran instead            of   challenging  the   quantities   reported  in   Williams'            statement.    Corcoran alleged  that  his  counsel failed  to            assure that  Corcoran's sentence reflected his  minor role in            the  conspiracy.4   Corcoran also  alleged that  his attorney            failed  to conduct  full discovery,  and to  raise diminished            capacity and entrapment defenses, and erroneously advised him            not to appeal his sentence.                       After   the  government   filed   an   answer  and            memorandum  in opposition,  the district court  dismissed the             2255 motion on the grounds that the record of  the change of            plea hearing conclusively  negated Corcoran's assertion  that            his  guilty plea  was  unlawfully induced  and not  knowingly                                            ____________________                   sentencing.            Also attached to the   2255 motion was a letter  from defense            counsel which forwarded Agent Georges' report to Corcoran and            observed:                   I  am sure  that you will  be as  disturbed as I                   was  by the  fact  that  we just  received  this                   report ... but this is something I will  have to                   take up  with  the  U.S.  Attorney  and  perhaps                   eventually with the Judge. ...            4.  Corcoran claimed that his  base offense level should have            been  20,  the  level that  would  have  applied  had defense            counsel, in addition to securing the government's stipulation            to  603.16  grams,  successfully  excluded  the 368.55  grams            identified in Williams' statement.   Corcoran argues that his            counsel  should have insisted that his sentence be limited to            33 months.                                            -5-            entered.  The court ruled that Corcoran had no right to Agent            Georges' report  before entering  his guilty plea  because it            was  not  discovery material  but rather  a  DEA report  on a            codefendant to  which Corcoran had no right  under the Jencks            Act.5    The court  concluded that  the  absence of  merit in            Corcoran's   first  two   claims  defeated   his  ineffective            assistance  of counsel claim.   From this order, Corcoran has            taken a timely appeal.                                         II.                       On  appeal,  Corcoran  seeks  to  vacate his  plea            and/or sentence essentially because he agreed to plead guilty            based  on  an underestimate  of  how  much cocaine  he  would            ultimately be held responsible for, an underestimate fostered            by  the government's  failure  to produce  and his  counsel's            failure  to  discover Agent  Georges' summary  of codefendant            Williams' post-arrest statement.  We conclude that Corcoran's             2255 claims  were properly dismissed  without an evidentiary            hearing  because "'it  plainly appears  from the face  of the            motion and any annexed exhibits and  the prior proceedings in            the case  that [Corcoran]  is not entitled  to relief...  .'"            Myatt  v.  United States,  875 F.2d  8,  11 (1st  Cir. 1989),            _____      _____________                                            ____________________            5.  The  Jencks Act,  18 U.S.C.   3500(a), in  relevant part,            provides that, "no statement  or report in the possession  of            the United States which  was made by a Government  witness or            prospective  Government  witness (other  than  the defendant)            shall  be  the  subject   of  subpena  (sic),  discovery,  or            inspection  until  said  witness  has  testified  on   direct            examination in the trial of the case."                                          -6-            (quoting Rule 4(b) of the Rules Governing Proceedings in U.S.            District  Courts  under 28  U.S.C.   2255).    We sketch  the            background.                       Agent Georges' report  was a typed summary of  the            post-arrest  statements  of   codefendant  Warren   Williams.            Paragraphs 9 through 12 of the report indicated that Williams            introduced  Corcoran to  codefendant  Peter  Garuti and  that            Williams personally sold Corcoran a total of  6 ounces (170.1            grams)  of cocaine  that Williams  had procured  from Garuti.            Williams further related that he witnessed Corcoran  purchase            an  additional 7  ounces (198.45  grams) of  cocaine directly            from Garuti  and estimated  that, based on  his conversations            with  these defendants,  Corcoran had  completed at  least 10            additional  transactions with  Garuti, although  Williams did            not witness them.                       Corcoran's   counsel  filed   a  pre-trial  motion            seeking  all defendants'  statements under  Fed. R.  Crim. P.                                         -7-            16(a)(1)(A).6    The  government's  response to  this  motion            stated,                        Although Rule 16(a)(1)(A) ... does not                       require  the production  of statements                       as to  coconspirators or codefendants,                       the  United  States  will  not quibble                       over  such issue.   The government has                       agreed to and has in fact, provided to                                 ____________________________                       all defendants any statement  which is                       ______________________________________                       Rule 16(a)(1)(A) . . . material  as to                       ______________________________________                       any  defendant  .   .  .   [including]                       ______________             ___________                       reports   detailing    statements   to                       ______________________________________                       arresting   officers   by   defendants                       ______________________________________                       Williams   and   Vokey.      (emphasis                       ________                       supplied).             In conjunction with this response, which was filed almost two            months before  Corcoran  changed  his  plea,  the  government            produced the  handwritten notes  of another DEA  agent, Agent            Bryfonski, who was also present for Williams' debriefing.                                            ____________________            6.    Federal Rule  of  Criminal Procedure  16(a)(1)(A)  then            provided, in relevant part, that:                   Upon  request  of  a  defendant  the  government                   shall  permit the defendant to  inspect and copy                   ...:   any   relevant   written   or    recorded                   statements  made  by  the  defendant, or  copies                   thereof,  within  the  possession,  custody   or                   control  of  the government,  the  existence  of                   which  is  known,  or by  the  exercise  of  due                   diligence may become known, to the  attorney for                   the  government;  the  substance  of   any  oral                   statement  [which  the  government  intends   to                   offer  in  evidence   at  trial]  made  by   the                   defendant  whether  before or  after  arrest  in                   response  to  interrogation  by any  person then                   known  to  the  defendant  to  be  a  government                   agent; and  recorded testimony of the  defendant                   before  a  grand   jury  which  relates  to  the                   offense charged... .                                            -8-            Agent  Bryfonksi's  report  was  not  as  detailed  as  Agent            Georges' report.   While  both reports related  that Williams            introduced Corcoran to Garuti and sold 6 ounces (170.1 grams)            of cocaine  to Corcoran,  Agent Bryfonski's report  failed to            describe the  other  cocaine purchases  (partially  totalling            198.45 grams) that Williams attributed to Corcoran.                         Thus, the  record discloses  that certain  details            concerning Williams' post-arrest statements were  produced to            Corcoran's  counsel before  Corcoran changed  his plea.   The            additional  details in  Agent  Georges' report  were produced            four days  after Corcoran  pled guilty and  some five  months            before  Corcoran's  sentencing.   Corcoran  did  not move  to            withdraw his  plea nor appeal his sentence.   The presentence            report (p. 24, Objection #7) indicates that Corcoran admitted            purchasing the  specific quantities (totalling  368.55 grams)            identified  in Agent  Georges'  report.   The ten  additional            transactions Williams accused Corcoran of completing directly            with Garuti  were not part of the district court's assessment            of Corcoran's relevant conduct.  We analyze Corcoran's claims            in light of this record.                                         III.                       We emphasize that this  is not a  case involving a            plea  agreement.   Moreover,  Corcoran has  not alleged  that            anyone (defense  counsel included), made any  promises to him            ______            concerning  the likely  sentence he  would receive.   Rather,                                         -9-            Corcoran's  claim is  that the  government failed  to produce            certain  information  before he  changed  his  plea, and  the            absence of this information now renders his plea invalid.                       "In the absence  of an explicit plea agreement,  a            court  must  distinguish  between   the  situation  where   a            prosecutor   omits  information,   and   where  he   provides            inaccurate  or misleading  information,  in  securing  guilty            pleas."    Wellman v.  Maine, 962  F.2d  70, 72-73  (1st Cir.                       _______     _____            1992).  While the  government's response to defense counsel's            discovery motion might reasonably have led counsel to believe            that  the  government  had  produced  all  the  codefendants'            statements it had, we think this case, like Wellman, involves                                                        _______            a  simple inadvertent  omission  by the  prosecutor.7   Under            these  circumstances, "a  defendant  seeking to  set aside  a            guilty  plea  must  at  the  very  least  show  that  correct            information  would have made a  difference in his decision to            plead  guilty."  Id. at  73, (citing Cepulonis  v. Ponte, 699                             ___          ______ _________     _____            F.2d  573, 577  (1983)).   On this  record, we  cannot accept            Corcoran's conclusory assertion - made for  the first time on            appeal - that he would  not have pled guilty had he  known of            Agent Georges' report.  Corcoran cites the report's reference            to the facts that Williams introduced Corcoran to Garuti  and                                            ____________________            7.  This conclusion is supported by defense  counsel's letter            to  the prosecutor,  which  observed that  the  delay in  the            production of Agent Georges'  report was not the prosecutor's            fault.                                         -10-            initially  procured  cocaine   for  Corcoran,  as   "evidence            favorable"  to Corcoran.  While such evidence might have been            used  to portray Williams as  the more culpable  of the two,8            the  substance of  Georges' report  was far  more inculpatory            than exculpatory of  Corcoran.  The report  provided no basis            to  construct a  defense  that might  have  been a  plausible            alternative  to  pleading guilty.    Moreover,  this part  of            Williams' statement  had, in  fact, been produced  to defense            counsel  in Agent  Bryfonski's  report.   Where Corcoran  had            ample time to challenge any inaccuracies in the report before            sentencing,   and  the  allegedly   exculpatory  portions  of            Williams' statement  were available to defense counsel before            Corcoran changed his  plea, Corcoran's conclusory  allegation            that  he was  prejudiced  by the  tardy  production of  Agent            Georges' report is conclusively refuted by the record.                       The district  court  dismissed this  claim on  the            ground that Agent Georges' report was not subject to pretrial            discovery under the Jencks Act.  While this court has yet  to            address   the  issue,   other   circuits   have   held   that            coconspirators' statements are not discoverable under Fed. R.            Crim. P. 16(a)(1)(A).   See, e.g., United States v.  Orr, 825                                    ___  ____  _____________     ___            F.2d 1537,  1541 (11th Cir. 1987); United  States v. Roberts,                                               ______________    _______                                            ____________________            8.  We  note  that  at Corcoran's  sentencing  the prosecutor            expressly  stated  that,  if  anything,  Corcoran   was  less            culpable  than Williams.  (Tr. 37).   Corcoran's sentence was            longer than Williams because  Corcoran had a more significant            criminal history and had not cooperated with the government.                                          -11-            811  F.2d 257,  258 (4th Cir.  1987) (en  banc).   See also 8                                                               ___ ____            Moore's   Federal  Practice,    16.04[1][a],  p.   16-64  ("A                      _________________            defendant may discover only his  own statements, not those of            a  codefendant." (footnote  omitted)).   We need  not resolve            this  point  on  appeal.    Insofar  as  Corcoran  asserts  a            violation of  Rule 16(a)(1)(A), his  claim is subject  to the            general  rule  that  "nonconstitutional  claims  may  not  be            presented in  a section  2255 proceeding unless  'the claimed            error  of  law  [represents]  "a  fundamental   defect  which            inherently results  in a complete  miscarriage of justice."'"            Barrett v. United States, 965 F.2d 1184, 1188 (1st Cir. 1992)            _______    _____________            (citations omitted).   On this record, we  have no hesitation            in  holding that  the government's  failure to  produce Agent            Georges' report before Corcoran pled guilty did not result in            a miscarriage of justice.                             To be sure, a  defendant who pleads  guilty has  a            right to know the  nature of the charges against him  and the            possible  punishment he faces.   Iaea v. Sunn,  800 F.2d 861,                                             ____    ____            866  (9th Cir.  1986).   Toward that  end, Fed.  R.  Crim. P.            11(c)(1)   requires  that  district   judges  determine  that            defendants understand:                       .  . .  the mandatory  minimum penalty                       provided  by  law,  if  any,  and  the                       maximum  possible penalty  provided by                       law,  including  the  effect   of  any                       special  parole or  supervised release                       term,  the  fact  that  the  court  is                       required  to  consider any  applicable                       sentencing  guidelines but  may depart                                         -12-                       from   those  guidelines   under  some                       circumstances,  and, when  applicable,                       that  the  court  may  also  order the                       defendant to make  restitution to  any                       victim of the offense; . . .                   The  record  of  Corcoran's  change  of  plea  hearing            establishes  that   the   district  judge   satisfied   these            requirements.   He advised  Corcoran that upon  conviction he            would be subject to  imprisonment up to twenty years,  a fine            of  up  to $1  million (or  any  combination of  the  two), a            minimum  of  three  years  supervised release,  and  $150  in            special felony  assessments.  Corcoran  acknowledged that  he            understood these penalties.  He also acknowledged that he had            conferred with counsel concerning  the likely application  of            the Sentencing Guidelines to his case.  Although that "likely            application"  was   not  discussed   in  terms   of  specific            guidelines,  Corcoran  acknowledged  that he  understood  the            court  could not determine  the applicable guideline sentence            until after  the presentence  report was prepared.   Corcoran                  _____            denied  that any promises had been made to him concerning the            sentence the court would impose.   Having reviewed the entire            record, we are satisfied that Corcoran's plea was a voluntary            and intelligent act.9                                              ____________________            9.  Rule  11  does  not  require district  courts  to  advise            defendants how their  "relevant conduct" might be  determined            under the  Sentencing Guidelines.   Such a  requirement often            would be unworkable, for, as the  Advisory Committee notes to            the   1989  Amendment  to  Rule  11   observe,  "it  will  be            impracticable, if  not impossible, to  know which  guidelines            will be relevant  prior to the  formulation of a  presentence                                         -13-                       Finally, Corcoran has  failed to state a basis  to            set  aside   his  plea  based  on   the  alleged  ineffective            assistance  of his  counsel.   Corcoran  argues that  defense            counsel  led  Corcoran  to  believe  he  would  only  be held            responsible for  cocaine quantities related to  the counts to            which  he pled guilty and that  counsel's failure to discover            Agent Georges'  report resulted  in a concomitant  failure to            advise Corcoran precisely how his "relevant conduct" would be            determined.   But the  record discloses that  defense counsel            discovered  part of  the  quantities Williams  attributed  to            Corcoran through Agent Bryfonski's report.  Even if we assume            that, absent Agent Georges'  report, defense counsel erred in            estimating   the  applicable  guideline,  a  mere  inaccurate            prediction  as  to a  defendant's  likely  sentence does  not            constitute ineffective assistance.  See,  e.g., United States                                                ___   ____  _____________            v.  Arvanitis,  902 F.2d  489,  494 (7th  Cir.  1990); United                _________                                          ______            States v. Pallotta, 433 F.2d 594, 595 (1st Cir. 1970).  Where            ______    ________            Corcoran  admitted purchasing  the  quantities identified  in            Agent Georges' report, there was no basis for defense counsel            to challenge their  inclusion at sentencing.  Indeed,  such a            challenge  would have  been inconsistent  with the  notion of            acceptance of responsibility,  for which Corcoran received  a            two level downward adjustment.   We also discern no  error in            defense  counsel's  advice  that  Corcoran  not  appeal   his                                            ____________________            report and resolution of disputed facts... ."                                          -14-            sentence.  Corcoran's remaining ineffective assistance claims            are  patently  meritless.    While  Corcoran's   2255  motion            asserted that he  was drug dependent when  he committed these            crimes, the presentence report contradicts this assertion and            indicates that, despite a history  of drug and alcohol abuse,            Corcoran  had  stopped drinking  in  1987  and stopped  using            cocaine  in June 1990.   Defense counsel's alleged failure to            explore a  diminished capacity or entrapment  defense was not            ineffective assistance.10                        Judgment affirmed.                       _________________                                            ____________________            10.  Corcoran does not allege that he was under the influence            of drugs or alcohol when he changed his plea.                                         -15-
