
USCA1 Opinion

	




          September 23, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1231                                     UNITED STATES,                                      Appellee,                                          v.                                  EDWARD W. SEELEY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Edward W. Seeley on brief pro se.            ________________            A. John Pappalardo,  United States  Attorney, and Brian T.  Kelly,            __________________                                _______________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                                          Per Curiam.      Appellant challenges  the district                      __________            court's  disposition of his motion under 28 U.S.C.   2255 and            former Rule  35(a), Federal  Rules of Criminal  Procedure, to            correct, modify or clarify his sentence.  The district  court            vacated appellant's  conviction on two counts  which it found            to be impermissibly repetitious of the remaining convictions,            but  left unchanged  the  total punishment  time.   Appellant            complains that  "more  is owed  to  [him] than  the  symbolic            emptiness   provided."    We   affirm  the  district  judge's            disposition for  substantially the same reasons  as set forth            in her opinion.                        In  his  notice  of appeal,  appellant  assigned as            error the district court's reliance on Judge Keeton's opinion            in United  States v. MacPherson,  CR 87-34-K (May  10, 1991),               ______________    __________            aff'd,  959  F.2d  230   (1st  Cir.  1992)  (table),  calling            _____            MacPherson  an "obscure . .  . unpublished case not available            __________            to  the public."    There  was  no  error  in  the  citation.            MacPherson  involved one  of appellant's  codefendants, tried            __________            separately but charged in the same indictment.  The issues in            Judge Keeton's  opinion were directly related  to those here.            See Loc.  R. 36.2(b)6 (stipulating that  unpublished opinions            ___            may be cited in related cases).  Moreover, the argument calls            into  question appellant's  good  faith.   In his  memorandum            below, appellant appended a  copy of the MacPherson decision,                                                     __________            and urged the district court to follow its reasoning.                      Appellant also attempts  on this  appeal to  attack            his conviction  and sentence on two  new grounds.   We do not            consider issues raised for the first time on appeal, unless a            gross miscarriage of justice would otherwise occur or the new            ground is  so compelling as "virtually  to assure appellant's            success."   Hernandez-Hernandez  v. United  States, 904  F.2d                        ___________________     ______________            758, 763 (1st Cir. 1990).                        Appellant's new arguments fall well outside of this            narrow exception.  First, he challenges as unreliable hearsay            certain testimony at his  trial.  We previously  rejected the            very  same  challenge  on  direct appeal,  United  States  v.                                                       ______________            Seeley, 892  F.2d 1, 3-4 (1st  Cir. 1989), so it  will not be            ______            reviewed again on a   2255 motion.  Barrett v. United States,                                                _______    _____________            965 F.2d 1184, 1190 (1st Cir. 1992).                        Second, appellant argues  that the trial judge  was            biased,  leading   her   to  impose   a   sentence   "grossly            disproportionate"   to  the   sentencing  guidelines.     The            guidelines  were not  in  effect on  the  date appellant  was            sentenced and we have held squarely that, in a pre-guidelines            case, the sentencing judge has plenary authority to treat the            guidelines as  extraneous surplusage.   See United  States v.                                                    ___ ______________            Twomey, 845 F.2d 1132, 1134-35 (1st  Cir. 1988).  He cites no            ______            probative evidence for  the claim of bias,  but uses snippets            of public information to conjure up a personal profile of the            judge that is as irrelevant as  it is unfounded.  See Blizard                                                              ___ _______                                         -3-            v. Frechette, 601 F.2d 1217, 1221 (1st Cir. 1979) (there must               _________            be some reasonable factual basis to doubt the impartiality of            the tribunal).                        For  the  reasons  stated  the  judgment  below  is            affirmed.            _________                                         -4-
