
USCA1 Opinion

	




          June 24, 1996         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2136                                    DAVID MALGERI,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                [Hon. Walter Jay Skinner, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Selya, Cyr, and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            David Malgeri on brief pro se.            _____________            Donald  K.  Stern,  United  States  Attorney,  Donald  L.  Cabell,            _________________                              __________________        Assistant U.S. Attorney.                                 ____________________                                 ____________________                 Per Curiam.  Pro se  petitioner David Malgeri  appeals a                 __________   ___ __            district  court order that summarily denied his motion to set            aside his  conviction and withdraw  his guilty plea  under 28            U.S.C.   2255.   Malgeri pled  guilty to attempting to  rob a            federally  insured  bank in  violation  of  18 U.S.C.      2,            2113(a),  and to  using  and carrying  a firearm  during that            attempt in violation of 18 U.S.C.   924(c).  He contends that            his plea was not knowing  and voluntary because the  district            court  failed to  warn him  about supervised release  and its            effect  during his Rule 11 hearing.  In an apparent effort to            distinguish  this case  from United  States v.  Timmreck, 441                                         ______________     ________            U.S. 780 (1979)(holding that    2255 relief was not available            to a prisoner who  alleged that the district court  failed to            advise him of a mandatory special parole term in violation of            Rule  11),  Malgeri  avers  that  he  was  wholly unaware  of            supervised  release  and  its  effect  throughout the  entire            district  court proceedings and  that he would  not have pled            guilty had he been advised of supervised release.                 Relying on Timmreck, the  district court concluded  that                            ________            Malgeri failed to state a cognizable habeas claim.  We agree.            We reject Malgeri's contention  that the district court erred            in holding  that he  had  failed to  allege a  constitutional            error.  Malgeri cannot convert  a technical Rule 11 violation            into a  constitutional error simply  by averring that  he was            otherwise unaware  of supervised  release and would  not have                                         -2-            pled guilty had he been so aware.  See, e.g., Lucas v. United                                               ___  ____  _____    ______            States,  963 F.2d 8, 12-15  (2d Cir. 1992);  United States v.            ______                                       _____________            Holloway,  960 F.2d  1348,  1352-54 (8th  Cir. 1992);  United            ________                                               ______            States v. DeLuca, 889 F.2d 503, 507-08 (3d Cir. 1989).1                                                                  1            ______    ______                 Malgeri also argues  that he is entitled  to relief from            his firearm  conviction   because he did not "use"  a firearm            as that term is construed in Bailey v. United States, 116  S.                                         ______    _____________            Ct.  501  (1995).     The  record  discloses  that  Malgeri's            conviction is fully supportable on the ground that he carried            the firearm.   See United States  v. Ramirez-Ferrer, 82  F.3d                         _____ _____________     ______________            1149,  1152 (1st Cir.  1996). Thus, Bailey  provides no basis                                                ______            for relief.                 In view  of the foregoing, the judgment  of the district            court is summarily affirmed.  See Local Rule 27.1.                               ________   ___                                            ____________________               1Malgeri also  claims that  he was prejudiced  because the               1            plea  colloquy misled him to believe  that his sentence would            not exceed the 93-101  month guideline sentencing range (GSR)            that  the prosecutor  identified in  response to  the court's            questioning.  The record  refutes this  claim.   Malgeri pled            guilty pursuant  to  an open  plea  agreement that  left  his            sentence  entirely within  the court's discretion  within the            statutory maximum available under  the law.  Malgeri affirmed            that  he had not been  promised a particular  sentence at the            Rule  11  hearing.  The  court's  questions   concerning  the            applicable GSR  in no way  imported a promise  that Malgeri's            sentence  would not exceed that range.  Thus, Malgeri was not            prejudiced by the plea colloquy.                                          -3-
