
USCA1 Opinion

	




          March 27, 1995                                [NOT FOR PUBLICATION]                            UNITED STATE COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1302                                    UNITED STATES,                                      Appellee,                                          v.                               PORFILIO MARTINEZ MEJIA,                                Petitioner, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            J.  Michael McGuinness,   McGuinness  &  Parlagreco on  brief  for            ______________________    _________________________        appellant.            Sheldon Whitehouse,  United States  Attorney,  Margaret E.  Curran            __________________                             ___________________        and Zechariah  Chafee, Assistant United States Attorneys, on brief for            _________________        appellee.                                 ____________________                                 ____________________                 Per Curiam.   Appellant Porfilio Martinez-Mejia  appeals                 __________            the  denial  by the  United  States  District  Court for  the            District of Rhode  Island of  his pro se  "motion to  correct                                              ___ __            presentence investigation  report."   Since  this motion  was            filed  after the  time for  a direct  appeal had  expired, we            treat the motion as one pursuant to 28 U.S.C.   2255.                 Martinez-Mejia, now represented by counsel, raises three            issues.  First, he  asserts certain factual "inaccuracies" in            the  presentence report  [PSR].   Second, he claims  that the            district court  erred in accepting the  recommendation of the            PSR and denying him  a two level reduction for  acceptance of            responsibility.  Finally,  he notes that the  PSR states that            he was  convicted of  conspiracy  to possess  with intent  to            distribute  more  than  500  grams of  cocaine,  whereas  the            judgment  lists  the offense  as  possession  with intent  to            distribute more than 500 grams of cocaine.                 Neither  of  the first  two  asserted  claims alleges  a            constitutional  or a  jurisdictional error.   Since Martinez-            Mejia failed to  pursue either  claim on  direct appeal,  any            error   would   warrant   reversal   only   in   "exceptional            circumstances" and only if the  error resulted in a "complete            miscarriage of justice."   Knight v.  United States, 37  F.3d                                       ______     _____________            769, 772 (1st  Cir. 1994).   We have  reviewed carefully  the            record in  this case and  find nothing  which indicates  that            justice miscarried.                                         -3-                 As   to  third   claim,   Martinez-Mejia   suffered   no            discernible  prejudice from the  variance between the offense            as  listed on  the  PSR  and the  offense  as  listed on  the            judgment.    Nonetheless, we  direct  the  district court  to            correct the record as appropriate.  See Fed. R. Crim. P. 36.                                                ___                 Affirmed.                 ________                                         -4-
