
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2269                                    UNITED STATES,                                      Appellee,                                          v.                                    GEORGE MORAN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. A. David Mazzone, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            George Moran on brief pro se.            ____________            Donald  K.  Stern,  United  States  Attorney,  and  Dina   Michael            _________________                                   ______________        Chaitowitz, Assistant  United States  Attorney, on Motion  for Summary        __________        Disposition, for appellee.                                 ____________________                                   February 5, 1997                                 ____________________                 Per Curiam.   We have carefully  reviewed the record  on                 __________            appeal and the briefs of the parties.  Assuming, in appellant            George  Moran's favor, that he has filed a timely appeal, we,            nonetheless, conclude that the appeal has no merit.                 The  district  court  neither   erred  nor  abused   its            discretion in construing Moran's self-styled "motion to amend            an  amended judgment in a  criminal case" as  a motion, filed            pursuant to 28 U.S.C.   2255, to vacate, set aside or correct            his  sentence.  Neither did  the district court  err or abuse            its  discretion  in  denying  Moran's  motion  for   default.            Moran's contention  that the  government's response to  his              2255 motion was late is unsupported in the record and, in any            event,  contrary  to Moran's  supposition,  even  if it  were            tardy,  Moran  is not  thereby  automatically  entitled to  a            ruling on his   2255 motion in his favor.                 As  for the substance of the   2255 motion, the district            court correctly  concluded that, in  this collateral  attack,            Moran may  not relitigate issues already  raised and rejected            in  his direct appeal and, to the  extent that Moran seeks to            raise  new issues, they could have been, but were not, raised            in that direct appeal.                 In any event, Moran's complaint about the time frame  of            the conspiracy, to  the extent  it is not  foreclosed by  our            opinion in his direct appeal, see United States v. Moran, 984                                          ___ _____________    _____            F.2d  1299 (1st  Cir. 1993),  is simply  factually erroneous.                                         -2-            Contrary to Moran's  apparent present  understanding, he  was            not  charged  with conspiring  with  Paul  Callahan, who  was            jailed  in   October  1988;  rather,  he   was  charged  with            conspiring  with Hobart  Willis (the alleged  ringleader) and            others and that  conspiracy was alleged to  have lasted until            June 12, 1990.                 Moran's remaining appellate arguments are foreclosed not            only  by circuit precedent,  see United States  v. Lindia, 82                                         ___ _____________     ______            F.3d 1154,  1161 (1st Cir. 1996), but also circuit precedent,            the  holding  of which  was recently  favorably cited  by the            Supreme Court, see  United States  v. Watts, 117  S. Ct.  633                           ___  _____________     _____            (1997) (per  curiam), citing  United States v.  Mocciola, 891                                  ______  _____________     ________            F.2d 13,  16-17 (1st  Cir.  1989).   Finally, the  government            correctly points  out that  the amount of  cocaine underlying            the counts on which Moran was acquitted played no dispositive            role in the  ultimate sentence imposed.   His offense  level,            and  his sentence, was determined  by his status  as a career            offender.                 The  "motion  for  reassignment of  appellate  panel" is                 ________________________________________________________            denied.            _______                 The orders of the district  court denying the motion for                 ________________________________________________________            default and the   2255 motion are Affirmed.            ___________________________________________                                         -3-
