
USCA1 Opinion

	




          June 8, 1995                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                 FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1043                                  EDWARD W. SEELEY,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                             ______________                                _____________________            Edward W. Seeley on brief pro se.            ________________            Donald  K. Stern,  United States  Attorney, and  June C. Seraydar,            ________________                                 ________________        Assistant United Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Petitioner Edward  W. Seeley  appeals                      __________            pro se from  the dismissal  of his second  petition under  28            ___ __            U.S.C.   2255.  For the following reasons, we affirm.                      In February  1987, a federal grand  jury returned a            superseding indictment charging petitioner with conspiracy in            violation  of  18  U.S.C.     371  (count  I); conspiracy  to            interfere with commerce  by robbery in violation of 18 U.S.C.              1951 (count II); two  counts of interference with  commerce            by robbery in violation of  18 U.S.C.    2, 1951 (counts  III            and IV); armed bank  robbery in violation of 18  U.S.C.    2,            2113(d) (count V); and possession of money stolen from a bank            in violation  of 18 U.S.C.     2,  2113(c) (count  VII).   On            February  24, 1988,  a jury acquitted  petitioner of  the two            conspiracy charges,  but convicted him of  the remaining four            charges.  The district court sentenced petitioner to  a total            of thirty-five years imprisonment.                        We  affirmed  petitioner's  conviction   on  direct            appeal.  United States v. Seeley, 892 F.2d 1 (1st Cir. 1989).                     _____________    ______            On  May 18, 1992, petitioner  filed his first    2255 motion.            He alleged that  counts IV  and V were  multiplicitous.   The            district  court vacated  the sentence  on count  V, but  left            unchanged  the  total punishment  time.   Petitioner appealed            from  this  decision, and  we  affirmed.   United  States  v.                                                       ______________            Seeley, 7  F.3d 219 (1st Cir. 1993) (table) (per curiam).  On            ______            August 8, 1994,  petitioner filed his  second   2255  motion,            claiming  that  (1)  his convictions  on  counts  III and  IV            violate  the  Double  Jeopardy  Clause and  the  doctrine  of            collateral  estoppel  because he  was  acquitted  of the  two            conspiracy charges;  and (2)  his  thirty-five year  sentence            violates due  process because  the district court  considered            evidence of his involvement in the conspiracy.   The district            court dismissed  the petition on the  ground that "petitioner            is not entitled to the relief he seeks."  This appeal ensued.            Because the  district court disposed  of the instant  case on            the  merits (rather  than on  abuse of  the writ  ground), we            shall do likewise.                        In  support of  his claim  that his  convictions on            counts  III and IV violate the Double Jeopardy Clause and the            doctrine of collateral estoppel, petitioner argues that these            counts  are  multiplicitous  with  counts  I  and  II.   This            argument  is  meritless.    First,  double  jeopardy  is  not            implicated  here   since  there   was  a  single   trial  and            petitioner, who was acquitted  of the conspiracy charges, did            not  receive  multiple  punishments   for  the  offenses   of            conspiracy and  interference with  commerce by robbery.   See                                                                      ___            United  States  v.  Dixon,  113  S.  Ct.  2849,  2855  (1993)            ______________      _____            (observing that the  Double Jeopardy Clause protects  against            successive  prosecutions and  successive punishments  for the            same offense); United States v. Flores-Rivera, 1995 WL 318726                           _____________    _____________                                         -3-            at  *11, n.5 (1st Cir. June  1, 1995).  Second, a substantive            crime and a conspiracy to commit that                                         -4-            crime are not the same offense  for double jeopardy purposes.            United States v. Felix, 503 U.S. 378, 389-92 (1992); Callanan            _____________    _____                               ________            v. United  States, 364  U.S. 587,  597 (1961)  (conspiracy to               ______________            violate the  Hobbs Act  and  a substantive  violation of  the            Hobbs Act based on the same conduct are two separate offenses            even  though   both  offenses  violate  the   same  statute).            Finally, although  the doctrine  of collateral  estoppel bars            relitigation of issues previously determined in a defendant's            favor, it  does  not, contrary  to  petitioner's  suggestion,            require the verdict rendered at a single trial to be entirely            consistent.   See United States v. Console, 13 F.3d 641, 664-                          ___ _____________    _______            65  & n.28  (3d  Cir. 1993),  cert. denied,  114 S.  Ct. 1660                                          ____________            (1994).                      Petitioner's  due  process   argument  is   equally            unavailing.   It is well-established that  a sentencing court            may consider relevant conduct--including the facts underlying            an acquittal----in  determining the length  of a  defendant's            sentence.   See United States v. Mocciola, 891 F.2d 13, 16-17                        ___ _____________    ________            (1st  Cir.  1989)  (sentencing   court  may  consider   facts            underlying  prior acquittal);  United States  v. Wright,  873                                           _____________     ______            F.2d 437, 441 (1st Cir.  1989) (observing that past practice,            and authoritative case  law, indicates that the  Constitution            does  not,  as  a  general matter,  forbid  consideration  of            relevant conduct).    Assuming, arguendo, that the sentencing                                            ________            court in                                         -5-            the   instant  case   considered  evidence   of  petitioner's            involvement in  the conspiracy  in determining the  length of            his sentence, this was not error.                      Affirmed.                        ________                                         -6-
