
USCA1 Opinion

	




          May 3, 1993           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2048                                       GUSTAVO ALBERTO CAMACHO CARBONO,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ___________________               Gustavo Alberto Camacho-Carbono on brief pro se.               _______________________________               Daniel   F.  Lopez-Romo,  United   States  Attorney,  Warren               _______________________                               ______          Vazquez, Assistant United  States Attorney, and   Jose A.  Quiles          _______                                           _______________          Espinosa, Senior Litigation Counsel, on brief for appellee.          ________                                  __________________                                  __________________                      Per  Curiam.       Gustavo  Alberto Camacho-Carbono                      ___________            appeals the denial  of his  motion to set  aside, vacate,  or            correct his sentence pursuant to 28 U.S.C.   2255.  We affirm            the district court's decision dismissing his petition.                       Appellant was  found to  be in possession  of three            kilograms of  cocaine at  the Luis Munoz  Marin International            Airport  when  his  airline  flight, en  route  from  Bogota,            Colombia to  Madrid,  Spain, made  a  stopover in  San  Juan,            Puerto  Rico.  He  was arrested and charged  in a three count            indictment  with (1)  knowingly  importing cocaine  into  the            customs territory of  the United States from a  place outside            thereof in  violation of 21  U.S.C.   952(a);  (2) possession            with intent to distribute cocaine in violation of 21 U.S.C.              841(a)(1); and (3) possession of cocaine on board an aircraft            arriving in the customs territory of the United States, which            drug was  not part  of the cargo  entered in the  manifest or            part of the official supplies  of the aircraft, in  violation            of 21 U.S.C.   955.                      After  pre-trial  discovery,  appellant  agreed  to            plead guilty to Count Three, violation of 21 U.S.C.   955, in            exchange  for which  the government  dismissed the  other two            counts.   The plea agreement  signed by appellant  on May 16,            1989, shows  that appellant  then understood that  his guilty            plea   meant  that  he  would  be  sentenced  to  a  term  of            imprisonment of not less than five nor more than forty years,                                         -2-            supervised release of four years and a possible fine of up to            two million dollars.    On September 5, 1989,  petitioner was            sentenced  to sixty-three  months  incarceration, four  years            supervised  release,  and a  special  monetary assessment  of            $50.00.  No appeal was taken.   The instant   2255  petition,            which we construe, in  part, as an attack on his  guilty plea            as not knowing  and voluntary,  was filed on  June 10,  1992.            After consideration  of the  motion papers and  exhibits, the            district court  denied the petition for reasons stated in its            order of August 6, 1992.  This appeal followed.                      Appellant  argues that  his sentence should  be set            aside  because his flight was bound for Spain, not the United            States.   He suggests  that  he was  not  in control  of  the            plane's  flight path and implies  that he was  not aware that            the plane would stop in San Juan.                        As  appellant now sees  it, these facts inevitably            lead  to two  conclusions.   First, he  now believes  that he            could not  have been lawfully  convicted under the  first two            counts  of the indictment and should have been so informed by            either the prosecutor  and/or his own counsel prior  to entry            of  his guilty plea to  Count Three.   Second, he argues that            his  own  lack  of  control  over,  and  awareness  of,   the            airplane's  stopover  in San  Juan  proves  that he  was  not            "voluntarily" in the United  States and therefore not subject            to conviction under Count Three.                                         -3-                      Appellant's   first  conclusion   is  based   on  a            misapprehension  of the  law.   See  United States  v. Gomez-                                            ___  _____________     ______            Villamizar,  981 F.2d  621,  624 (1st  Cir.  1992) (under  21            __________            U.S.C.   841(a) the government need not prove that  defendant            had the intent to distribute drugs in the United States, only            possession  in  the United  States  and  facts sufficient  to            permit  an inference  of  intention to  distribute);   United                                                                   ______            States v. Ocampo-Guarin, 968 F.2d 1406 (1st Cir. 1992) (it is            ______    _____________            not necessary  to establish that the defendant was aware that            his  flight would stop in the United States in order to prove            a violation of 21 U.S.C.   952(a)).                       Appellant's second  conclusion is  also based on  a            misapprehension of the law.  While he "attempts to dress[] it            in   jurisdictional   clothing,"   the   argument    is   not            distinguishable from that rejected  in earlier cases.  Gomez-                                                                   ______            Villamizar, 981  F.2d at 621; United  States v. Bernal-Rojas,            __________                    ______________    ____________            933 F.2d 97  (1st Cir.  1991).  Regardless  of a  defendant's            control or  knowledge of  an aircraft's rescheduled  path, so            long as the  defendant made  a free and  voluntary choice  to            board  an aircraft which landed  in Puerto Rico,  there is no            bar to a conviction under 21 U.S.C.   955.  Bernal-Rojas, 933                                                        ____________            F.2d at 101.1                                                ____________________            1.  In support of his argument, appellant has appended to his            brief  a July 21, 1992  decision of the  Board of Immigration            Appeals  ["BIA"]  in his  deportation  case.   That  separate            proceeding  involves different  legal  issues which  are  not            before  us.   Moreover, appellant  misplaces reliance  on the                                         -4-                      Appellant's final contention that he was denied the            effective  assistance of counsel is belied by his own written            statements   at  the   time,  expressing   satisfaction  with            counsel's performance,  and the  district  court's report  of            similar  statements at  the "change  of plea"  hearing.   See                                                                      ___            Blackledge  v. Allison, 431 U.S. 63,  74 n.4 (1977) (district            __________     _______            court   may   rely   on  its   recollection   of   sentencing            proceedings).      Appellant's   current  reconstruction   of            counsel's alleged  faults falls  short of meeting  the burden            appellant bears  of demonstrating that  the district  court's            determination on this  issue amounts to clear error.   Isabel                                                                   ______            v. United States, 980 F.2d 60, 64 (1st Cir. 1992).  He points               _____________            to  no advice  by  counsel that  was  outside "the  range  of            competence demanded of attorneys  in criminal cases," nor any            reason to  believe that counsel's choices  were not plausible            options.   United States v. Cronic, 466 U.S. 648, 655 (1984);                       _____________    ______            see also Barrett v. United States, 965 F.2d 1184, 1193 & n.18            ________ _______    _____________            (1st Cir.  1992) ("We may  not find a  deficient professional            performance in the constitutional sense unless the challenged                                            ____________________            BIA's  mixed  legal/factual conclusion  that  he  is in  this            country  "involuntarily."   As  the  cases cited  in  the BIA            decision show, the BIA's conclusion reflects only appellant's            status as a prisoner.  It does  not reflect in any way on the            legality of appellant's conviction under 21 U.S.C.   955.                                            -5-            decisions   were   not   `plausible   options'.")   (citation            omitted).2                         For  these  reasons,  the  district  court's  order            dismissing the petition is affirmed.                                       ________                                            ____________________            2.  In  a letter  to  this court  dated the  same day  as his            brief, December 18, 1992, appellant  alleges that he did  not            have  access  to a  law  library from  January,  1992 through            November 6, 1992.  As he  did not object on this basis below,            and had access  to a  library for purposes  of his  appellate            brief here,  we construe  his letter request  for "reasonable            relief"  as,  in  effect,  asking  that  we  read  his  brief            liberally.  This  we have done, resolving all  ambiguities in            his favor.                                          -6-
