
USCA1 Opinion

	




          September 15, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2322                             JOSE FRANCISCO RIVERA-LOPEZ,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________             Jose Francisco Rivera-Lopez on brief pro se.             ___________________________             Daniel  F. Lopez-Romo,  United  States Attorney,  and Charles  E.             _____________________                                 ___________        Fitzwilliam, Executive Assistant United  States Attorney, on brief for        ___________        appellee.                                 ____________________                                 ____________________                    Per  Curiam.   In  1987, petitioner  Jose Rivera  Lopez                    Per  Curiam.                    ___________          (Rivera)  pled guilty to procuring by fire the destruction of the          DuPont Plaza Hotel  in Puerto Rico.  In 1991,  he moved to vacate          his sentence under  28 U.S.C.    2255, alleging that  he had  re-          ceived ineffective  assistance of  counsel, that his  guilty plea          was involuntary  and  unknowing, that  newly discovered  evidence          exonerated him, and that  there was substantial disparity between          the sentences given him and his co-defendant.  The district court          denied  his motion  without  an evidentiary  hearing, and  Rivera          appealed.  We affirm.                                    I.  Background                                    I.  Background                                        __________                    On  December 31, 1986,  the DuPont  Plaza Hotel  in San          Juan, Puerto Rico burned, killing 97  people.  At the time, hotel          management was engaged in difficult collective bargaining negoti-          ations with the Teamsters Union.   Within weeks of the  fire, the          government had  obtained the confessions of  two hotel employees.          Hector Escudero  Aponte (Escudero) admitted  that he had  set the          fire,  and Armando Jimenez Rivera (Jimenez)  admitted that he had          provided  Escudero with  the sterno  used in  starting  the fire.          Escudero told the government that Rivera, a  fellow employee, had          suggested  setting a fire that day to pressure management to give          in to union  demands.   Other witnesses  told investigators  that          Rivera  had  made statements  before  the  fire  broke out  which          suggested that there should or could be a fire at  the hotel that          day, or  that he had urged hotel employees to make a "curtain" to          shield  Escudero from  view  as he  lit  the sterno.    Escudero,          Jimenez and Rivera  were indicted  for their roles  in the  fire.          The indictment  against Rivera stated that  Rivera had "knowingly          and intentionally  procure[d]  the . . .  malicious damaging  and          destruction, by means  of fire,  of a building  . . . which  fire          resulted  in the death of persons, all in violation of [18 U.S.C.             2 and 844(i)]."                    Eventually, all  three defendants pled guilty.   Rivera          admitted that  he had urged Escudero to set the fire and had made          statements to the  effect that a fire should be  set, but did not          admit any involvement in  shielding Escudero from view as  he lit          the sterno.   In its plea agreements with Rivera and Jimenez, the          government  agreed to  recommend  sentences of  25 and  24 years,          respectively.    At the  plea  hearing, the  government  made the          promised  recommendations, but  the court  (Fust , J.)  sentenced          Rivera to 99 years in prison and  Jimenez to 75 years.  We upheld          the sentences upon appeal.  United  States v. Jimenez-Rivera, 842                                      ______________    ______________          F.2d 545  (1st Cir.),  cert. denied,  487 U.S.  1223 (1988).   In                                 _____ ______          1990,  Judge Fust   reduced Rivera's  sentence to  40 years,  and          Jimenez's to 25 years.  Rivera then brought the present motion to          vacate  his sentence.    On appeal,  he  claims that  his  motion          alleged sufficient facts to require an evidentiary hearing on his                                          3          claims; he also alleges that the district court erred in dismiss-          ing his sentence disparity claim.                                   II.  Discussion                                   II.  Discussion                                        __________          A.   Ineffective Assistance of Counsel          A.   Ineffective Assistance of Counsel               _________________________________                    Rivera makes numerous allegations in his briefs, and in          a  separate affidavit submitted in support of his claim, that his          court-appointed counsel, Frank  Inserni, Esquire, rendered  inef-          fective  assistance.1  The gist of Rivera's claim is that Inserni          failed to  interview favorable  witnesses and to  investigate his          defenses adequately.                    To state  a sufficient claim of ineffective assistance,          Rivera must  show that Inserni's performance fell below an objec-          tive  standard of  reasonableness and  that Inserni's  inadequate          performance  prejudiced him    that there is a "reasonable proba-          bility" that,  but for  Inserni's errors,  Rivera would  not have          pled guilty, but would have insisted on going to trial.   Hill v.                                                                    ____          Lockhart, 474  U.S. 52, 58-59 (1985).  To show that he was preju-          ________          diced by Inserni's failure to investigate defenses or to discover          potentially favorable evidence, Rivera  must demonstrate that any                                        ____________________               1The  allegations in  Rivera's brief  are far  more specific          than  those made under oath in his affidavit.  Ordinarily, asser-          tions made in briefs are insufficient to raise a cognizable issue          of fact.   Because of Rivera's  pro se status,  however, we  have          considered  the allegations  in his  brief as  well.   See United                                                                 ___ ______          States v. Michaud, 925 F.2d 37, 41 (1st Cir. 1991).          ______    _______                                          4          such  defenses  or  evidence  likely would  have  changed  either          Inserni's recommendation that Rivera plead guilty, or the outcome          of a trial.   Id. at 59.  Moreover,  Rivera stated under oath  at                        ___          his Rule 11 hearing  that he was satisfied with  Inserni's repre-          sentation.   As  these sworn  statements are  presumptively true,          Rivera  must  give a  credible reason  for  his retraction.   See                                                                        ___          Hernandez-Hernandez v. United States, 904 F.2d 758, 762 (1st Cir.          ___________________    _____________          1990); United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984).                 _____________    ____                    Rivera claims that Inserni  did not conduct an adequate          investigation of a list of witnesses Rivera gave him when Inserni          was  appointed.  Rivera  says those witnesses  could have refuted          the testimony  of government witnesses  as to his  involvement in          the  so-called  "curtain"  episode,  his  actual statements  upon          arriving at the  hotel after a union  meeting at a  local restau-          rant, and his whereabouts or other details concerning his actions          on the day of  the fire.  Rivera also  says that Inserni did  not          interview  witnesses  who  might have  helped  determine  whether          Rivera had induced Escudero to start the fire.   He suggests that          union members who attended  the meeting at a local  restaurant on          the day  of the fire,  and a  delegate named Muniz  who travelled          with Escudero and Rivera to the meeting, could have shed light on          that issue.                    Rivera  states that  Francisco Velez  Muniz  and Emilio          Lanzo  Santiago  would  have  "controverted"  the  statements  he          allegedly  made in the hotel  kitchen before and  after the union                                          5          meeting.   However, Velez's statement, submitted  with the habeas          petition, says that Velez saw Rivera at the hotel, the day of the          fire, pounding his fist  on a table and declaring  "[t]oday there          is going to be blood and fire  in the Hotel, we are going to burn          everything that we find in our way."  Lanzo's statement described          three men  who left the  hotel's south ballroom  together shortly          before  Lanzo discovered the fire in the south ballroom.  Accord-          ing  to other documents  in the record,  Lanzo's descriptions fit          Escudero, Rivera and Jimenez.                    With respect to the  list of other potential witnesses,          Rivera  says only  that those  witnesses  would have  refuted the          testimony of  government witnesses  on certain issues,  e.g., the                                                                  ____          "curtain" episode  and Rivera's  statements upon arriving  at the          hotel.  He neither  states what their testimony would  have been,          nor  that they  would  be willing  to  testify; he  presented  no          affidavits from these  "witnesses."  Thus, the district court was          justified in not holding an evidentiary hearing.  See Lincecum v.                                                            ___ ________          Collins, 958 F.2d 1271,  1280 (5th Cir.) (no evidentiary  hearing          _______          required where habeas petitioner  said that friends and relatives          would have testified as  to allegedly mitigating circumstances             which  petitioner did  not otherwise  describe     where none  of          alleged witnesses had submitted an affidavit showing that his  or          her testimony would have helped petitioner), cert. denied, 113 S.                                                       _____ ______          Ct. 417  (1992); United States v. Green,  882 F.2d 999, 1003 (5th                           _____________    _____          Cir.  1989) (similar).  We note also that the suggested testimony                                          6          apparently would not have  challenged the admissions by Escudero,          the  government's chief  witness.   As  the government  agreed to          recommend  a 25-year  sentence instead  of life,2  we decline  to                                                     ____          speculate   that  either  Inserni's  recommendation  or  Rivera's          decision to plead  guilty (or the outcome of  a trial) would have          been  different, given Escudero's  admissions, let alone Rivera's          pre-plea admissions.                    Finally, no  evidentiary hearing  was  required on  the          claim  that Inserni  should  have interviewed  union members  who          attended  the union meeting at a local restaurant with Rivera and          Escudero the day of the fire.  Rivera says that the union members          could have  helped determine whether Rivera  had induced Escudero          to start  the fire.    The record  suggests that  Muniz may  have          suggested to Escudero that he  set a fire among the boxes  in the          south ballroom and that  previously Muniz had instructed Escudero          to set other  fires at the hotel which  had caused minor property          damage.   However,  the discovery  that Muniz  or others  had in-          structed Escudero to start other fires, or instructed Escudero to          start  this fire,  would not  have relieved  Rivera of  aider and          abettor liability  for  having himself  affirmatively  encouraged          Escudero  to start  the fire  several hours  before.   See, e.g.,                                                                 ___  ____                                        ____________________               218 U.S.C.   844(i) authorizes a maximum penalty of death or          life imprisonment.  However,  before plea negotiations began, the          government announced that  it would not  seek the death  penalty.          Thus,  at the time the  government agreed to  recommend a 25-year          sentence,  its  maximum  alternative  recommendation   under  the          statute would have been life imprisonment.                                          7          Pearson v. United States, 192 F.2d  681 (6th Cir. 1951) ("one who          _______    _____________          with  knowledge of  the  commission of  a  crime assists  in  its          execution may  not escape the  penalty merely because  another is          the  dominating  or  controlling  actor"); see  Asher  v.  United                                                     ___  _____      ______          States, 394  F.2d 424, 430-31  (9th Cir. 1968)  (similar); United          ______                                                     ______          States v. Garguilo, 310  F.2d 249, 253 (2d Cir.  1962) (similar).          ______    ________          Thus, Inserni's  failure to  interview these witnesses  would not          have provided Rivera with  a viable defense to "aiding  and abet-          ting."  See United States v.  Porter, 924 F.2d 395, 397 (1st Cir.                  ___ _____________     ______          1991) (no "prejudice" absent  showing that failure to investigate          or interview  witnesses deprived  defendant of  "viable defense")          (direct appeal).                    Nor does Rivera suggest  a sound basis for discrediting          his sworn statement  at his  plea hearing that  he was  satisfied          with Inserni's representation.  Rivera appears to have known what          Inserni's investigative  efforts were before the  hearing.  Thus,          this is  not a case where lack of knowledge explains why a state-          ment made under oath  should now be discredited.   Compare United                                                             _______ ______          States v. Giardino, 797 F.2d 30, 32 (1st Cir. 1986) (petitioner's          ______    ________          stated satisfaction  with  counsel's performance  preceded  peti-          tioner's knowledge of counsel's misrepresentations).3                                        ____________________               3Rivera claims that Inserni never  investigated his personal          background  (e.g., education, social  background, marital status,                       ____          etc.) so as to mount  an effective defense.  Such information  is          most relevant at sentencing.  See Thomas v. Kemp, 796  F.2d 1322,                                        ___ ______    ____          1323  (11th Cir.),  cert. denied,  479 U.S.  996 (1986).   Rivera                              _____ ______          makes no  showing  that  the presentence  report  did  not  fully                                          8                                                  ____________________          present this information to the sentencing judge.                                          9          B.   The Guilty Plea          B.   The Guilty Plea               _______________                    Rivera  claims  that his  plea  was  not voluntary  and          knowing.  Inserni allegedly did not explain the charges adequate-          ly, pressured him,  misrepresented the facts,  and caused him  to          plead guilty despite his innocence.  Finally, Rivera alleges, the          sentencing judge became involved  in the plea bargaining process.          Rivera's  allegations are  conclusively  refuted by  the  record.          Moreover,  assuming their  truth, his specific  allegations would          provide  no basis  for relief,  hence no evidentiary  hearing was          required.   See Lema v.  United States, 987  F.2d 48,  51-52 (1st                      ___ ____     _____________          Cir. 1993).               1.   Failure to Explain Charges               1.   Failure to Explain Charges                    __________________________                    Rivera's affidavit attests that Inserni never explained          the charges, the  "technicalities" of the  case, the elements  of          his offense or how they applied to his case.  His brief says that          Inserni never explained  the aiding and abetting  charge.  Rivera          concedes  that Inserni explained the  "fire count" to  him.  Fur-          thermore, when  Rivera initially appeared before  a magistrate on          January 30,  1987, he was given a copy of the indictment charging          that  he  knowingly  and  intentionally  procured  the  malicious          destruction  of property by fire.   In his  plea petition, Rivera          acknowledged  his understanding  of the  charges; that  among the          acts that made him think  he was guilty was his "instigation"  of          Escudero  to set  the fire;  and that  Inserni had  explained the                                          10          language in the  indictment and the elements of the  offense.  At          the Rule 11  hearing, Rivera stated  under oath that  he had  had          ample  opportunity to discuss the case with Inserni; he knew what          the indictment said; he  knew he was being charged  with "procur-          ing" the fire;  he understood the charge; and  he agreed with the          government's summary of the evidence against him, referencing his          comments to  Escudero  that a  fire  had to  be set  to  pressure          management.4   Thus,  the record  conclusively shows  that Rivera          knew and understood the charge against him.                 2.   Counsel's Alleged Coercion               2.   Counsel's Alleged Coercion                    __________________________                    Rivera  charges that  Inserni coerced his  plea despite          his protestations  of innocence.  Rivera's  affidavit states that          Inserni  told him  that, if  he rejected the  government's offer,          murder  charges would be filed  in relation to  a federal officer          who died in the fire; that the government had  threatened to seek          the death penalty if he  did not plead guilty; and  that, immedi-          ately before  the plea  hearing,  Inserni reminded  him that  the          government would file murder  charges that day if Rivera  did not                                        ____________________               4At the Rule  11 hearing,  Judge Fust  read  the charge  and          paraphrased  or  read the  language of  both  18 U.S.C.     2 and          844(i); he also verified that, in light of the charge of  procur-          ing  and  the harsh  sentence which  could  be imposed  under the          statute,  Rivera still  wanted  to plead  guilty.   After  Rivera          responded affirmatively, Judge Fust  asked:  "So, I gather, then,          that  you understand the  charge; do  you have  any doubts?"   To          this, Rivera responded:  "Yes, sir.   No, sir."  This clearly was          meant  to convey  that Rivera  understood the  charge and  had no          doubts about pleading guilty.                                          11          plead guilty.  Consequently, he alleges,  during the plea hearing          he was afraid, nervous and unable to understand what was said.                    Rivera does  not allege that the  government would have          had no basis  for filing a  murder charge  against him.   Indeed,          Rivera  pled guilty  to second  degree murder  in a  Commonwealth          court.  In the  federal case, Escudero pled guilty to causing the          federal officer's death.  Thus, the threat, even if made, was not          improper.   See  Bordenkircher v.  Hayes,  434 U.S.  357,  362-65                      ___  _____________     _____          (1978) (prosecutor may threaten more serious charges if defendant          does  not  plead  guilty,  provided the  evidence  would  support          charges).  The record refutes Rivera's contentions.                    The record shows that  Rivera was aware at the  time he          pled guilty that the  government had announced that it  would not          seek the death penalty.  In  connection with his change of  plea,          Rivera  initialed  each   page  of  a   change-of-plea  petition,          apparently prepared  by Inserni,  which specifically stated  in a          handwritten entry that the  maximum punishment was life imprison-          ment ("cadena perpetua").   The first handwritten entry had  been          crossed out, however, and the only legible letters ("de") suggest          that  Inserni first began to  write "death" but  then wrote "life          imprisonment."5  At the plea  hearing, the court basically adopt-                                        ____________________               5Since  the court had the  plea petition before  it when the          hearing began, we  assume that it had been filled  out and signed          previously.  (We note, however, that the hearing began at 9 a.m.,          whereas the petition  was stamped as  filed at 1:10  p.m.).   The          record contains  no  evidence that  the  court had  informed  the          parties  before the  plea hearing  that it  would not  impose the                                          12          ed the government's position, indicating that it would not impose          the death penalty.   Under oath at the hearing,  moreover, Rivera          acknowledged that he knew that the government was not seeking the          death penalty, and also told the court that no one had threatened          him or coerced him into pleading guilty.6                    Although Rivera now claims that he was too  nervous and          confused to understand what was happening at the plea hearing and          that  Inserni told him what  answers to give,  later events belie          his  claim, including the fact that two months later, at sentenc-          ing, Rivera made an impassioned statement  of remorse, which left          little  doubt that  he still  believed  himself guilty  as stated          under oath at the plea hearing.   Moreover, Rivera made no subse-          quent attempt (apart  from the  present) to inform  the court  of          Inserni's  alleged lies and coercion, nor did he seek new counsel          in his later  efforts to  reduce his sentence.   Rather,  Inserni          brought  Rivera's direct appeal of his sentence in 1987, his Rule          35(b)  motion  to reduce  sentence in  1989,  and his  motion for          reconsideration, which ultimately led  to the sentence reduction.                                        ____________________          death penalty.  Thus,  although correctly reflecting the parties'          position,  the statement in the plea petition that life imprison-          ment  would  be the  maximum penalty  would  appear to  have been          overstated since  the court had  not yet acceded.   See 18 U.S.C.                                                              ___            34.               6Rivera alleges  that his  counsel in the  Commonwealth case          vehemently opposed  Inserni's urgings  that Rivera plead  guilty,          thereby attempting, apparently, to support his claim that Inserni          had coerced him to  plead guilty.  Rivera submitted  no affidavit          from local counsel, nor  does he explain its absence.   Moreover,          Rivera pled guilty to the Commonwealth charges.                                          13          In the years following his plea  and sentencing, Rivera's letters          to Inserni  do not  question Inserni's representation  until late          1989, and even then had nothing  to do with any alleged  coercion          or lies by Inserni.                    As Rivera suggests  no credible basis for  disbelieving          his sworn statements at the plea hearing, no  evidentiary hearing          was required.  See Ouellette v. United States, 862 F.2d 371, 375-                         ___ _________    _____________          76 (1st Cir. 1988) (no evidentiary hearing required on claim that          counsel's  misrepresentation caused  defendant  to plead,  guilty          where, despite  many chances to bring  alleged misrepresentations          to court's attention, petitioner did  not try to do so  until his            2255  motion almost  two and  one-half years  after sentencing;          "failure . . . to voice to the court any concern about the course          of events is directly at odds with [petitioner's] contention that          the  record does not contradict his  position"); United States v.                                                           _____________          Cermark, 622 F.2d 1049, 1051-52 (1st Cir. 1980) (similar).          _______               3.   Judicial Participation in Plea Bargaining               3.   Judicial Participation in Plea Bargaining                    _________________________________________                    At the  plea hearing, Rivera indicated  under oath that          he had not  been threatened or induced  (except as stated  in the          plea agreement) to plead  guilty and that he understood  that the          government's 25-year recommendation did not  bind the court.   In          the  plea agreement,  signed before  the court indicated  that it          would not impose the death penalty,  Rivera acknowledged that the                                          14          court could impose  any sentence authorized  by law.7   Likewise,          in  his plea petition,  Rivera acknowledged that  the court could          impose the same punishment on him as if convicted by a jury, that          sentencing was solely for  the court, and that the court  had not          suggested what the actual sentence would be.                    Rivera  now claims  that  Inserni told  him that  Judge          Fust   would not accept a  guilty plea unless  Rivera submitted a          "confession"  accepting  "some  guilt."   In  his  brief,  Rivera          appears to argue that the judge actually was involved in the plea          bargaining process,  and not that Inserni  had misrepresented the          situation  to him.8   Ultimately,  this  allegation depends  on a          slip of  the tongue at the  outset of the plea  hearing, when the          judge adverted to Rivera's plea petition as "a confession,  which          you subscribed under oath."  When Inserni reminded the court that          the plea  petition was not  under oath,  Judge Fust   immediately          stated that what he had before him was Rivera's plea petition.                    We confess confusion  concerning Rivera's  allegations.          Rule  11 mandates that the court, before accepting a guilty plea,                   ________                                        ____________________               7Even assuming, as his affidavit states, that Rivera did not          see  the plea agreement until  just before the  plea hearing, the          judge emphasized orally to Rivera that the government's recommen-          dation was not binding on the court.               8Prefatory remarks in  Rivera's brief,  however, state  that          Inserni  pressured him  to plead  guilty,  requiring "confessions          admitting  to  some guilt  based  on supposed  requests  from the                                               ________          Court,  . . . ."  (Emphasis added.)  In arguing the issue, Rivera          seems to settle on a claim that the court pressed Inserni to urge          Rivera to plead guilty, and that is the argument we address here.                                          15          inquire into the  nature of  the government's  proof, the  defen-          dant's understanding  and voluntariness,  and the existence  of a          factual basis for  the plea.  See Fed. R. Crim. P. 11(c),(d),(f).                                        ___          Thus,  we attribute  Rivera's  allegations  to  misunderstanding.          See, e.g., Rodriguez  v. United  States, 964 F.2d  840, 841  (8th          ___  ____  _________     ______________          Cir.  1992) (judge's  exploration  of factual  basis for  plea in          bench  conference with counsel at  plea hearing was not interven-          tion in plea negotiations); Fama v. United States, 901 F.2d 1175,                                      ____    _____________          1178 (2d Cir. 1990)  (court's rejection of first plea  agreement,          based on concerns about voluntariness and factual basis for plea,          not impermissible participation in plea negotiations).                    Beyond this, Rivera's allegations are vague, conclusory          and speculative.  He  neither alleges nor otherwise substantiates          that he was promised a 25-year sentence if he pled guilty, though          he seems to  imply as much; he does not  claim that, absent court          pressure,  Inserni would not have  recommended the plea; nor does          he say he  was told  to admit guilt  or suffer specific  untoward          consequences,  or  that he  believed  the  court was  threatening          adverse consequences unless  he pled guilty.   Thus, his  allega-          tions did  not raise a factual issue as to whether the judge took          part in plea negotiations.9                                        ____________________               9Furthermore, letters he  wrote to Inserni after  sentencing          suggest  that Rivera's recollection  concerning plea negotiations          is less than reliable and that he is confusing the court with the          United States Attorney.   In a letter to Inserni  a year after he          was sentenced, Rivera wrote:  "You know very well that when Lopez          Romo [U.S. Attorney] spoke to you in order to get a plea bargain,                                          16                    Finally, Rivera's suggestion  that the court  urged his          guilty  plea in  exchange for  a 25-year  sentence is  refuted by          Rivera's  later  conduct.   Had he  believed  that the  court was          behind  the government's  25-year recommendation,  he would  have          known on June 22,  1987, when he was sentenced  to 99 years, that          the judge had reneged.   Yet neither on  direct appeal nor  later          did Rivera raise the judicial intervention claim, nor does he now          claim  that he wanted  to do so  but was prevented  by counsel or          circumstances.          C.   Newly Discovered Evidence          C.   Newly Discovered Evidence               _________________________                    In 1988  and 1989, Escudero testified  at a preliminary          hearing, and in a Commonwealth bench trial, against union members          charged  with arson and murder in connection with the hotel fire.          The trial judge acquitted the defendants,  perhaps because he did          not  credit  Escudero's testimony.    During  the  course of  the          proceedings, Escudero allegedly testified that he had lied "many"          times to federal  officials investigating the  fire; that he  had          not planned, agreed to or discussed starting a fire at  the hotel                                        ____________________          I made  a statement which you  took and the U.S.  Attorney didn't          accept, and it was when I asked you what you had to say.  And you          answered me you must accept the facts for him to accept it and in          this way reach a  plea agreement."  Subsequent letters  by Rivera          refer to  Judge Fust  rather than U.S. Attorney Lopez Romo as the          one who would not  accept Rivera's first "confession."   In 1989,          Rivera wrote:   "I would like you  to obtain a  copy of my  first          guilty plea, which I [gave] to you and  which Judge Fust  suppos-          edly didn't  want to accept as guilty and that was when we had to          do another so that he would arrive at the 25-year sentence, which          later was not fulfilled . . . ."                                          17          with Rivera "with  the intention of  destroying the hotel"  while          travelling  with Rivera to the hotel (though he acknowledged that          Rivera had said  something to a security guard at the hotel about          "wreck[ing]" or "everybody's going  to get screwed here"); Rivera          had encouraged others to "make a curtain" around Escudero when he          set  the fire  so that  he  would not  be seen;  and other  union          members  had induced Escudero to  start the fire.   Rivera argues          that  Inserni would have  discovered this evidence  had he inter-          viewed Escudero, and would not have advised a plea.10                    We are unpersuaded.   First, in  the form presented  to          us, the  transcripts, apparently comprising hundreds  of pages in          their  entirety,  consist  of  selected  snippets  of  Escudero's          testimony.  Moreover, although some consecutive pages of testimo-          ny are provided, others are isolated and clearly exclude material          required for  a full understanding  of the testimony  in context.          In other instances,no clearmeaning can begleaned intranslation.11                                        ____________________               10In the district court,  Rivera moved for a "new  trial" on          the basis of newly  discovered evidence pursuant to Fed.  R. Crim          P. 33 standards.  The court noted that Rivera had not had a trial          and  that his  motion was  late  in any  event.   Since it  found          Rivera's claim meritless under  Rule 33, the court did  not reach          the  question whether Rivera's claim could be brought as a   2255          action.   See Pelegrina v. United  States, 601 F.2d 18,  19 & n.2                    ___ _________    ______________          (1st  Cir. 1979).   We need not  address the legal  issue either,          since the claim lacks merit.               11Rivera  belatedly submitted an  uncertified translation of          portions of Exhibit 30.  Although Rivera did not attach a certif-          icate  of service  to the  translation, the  clerk of  this court          served  a  copy on  the government,  and  the government  has not          objected to its inclusion in the record.                                          18                    Second,  the proffer  of Escudero's testimony  does not          purport  to state that Rivera did not encourage Escudero to start          a  fire,  without Rivera's  participation,  with  the purpose  of          causing less significant  property damage.   Nor does it  gainsay          that  Rivera made  statements at  other times  that day,  or took          other actions, that  encouraged Escudero  to set the  fire.   The          fact that others initially  urged Escudero to set the  fire would          not relieve Rivera of liability for his own criminal actions.                    Finally, since Rivera  has not demonstrated entitlement          to an evidentiary hearing on the claim that his plea was invalid,          the  later  evidence, such  as  it  is,  that Escudero  minimized          Rivera's  involvement in the fire,  is immaterial in  view of the          district  court's  valid  determination  that  Rivera's plea  was          supported by  the government's  evidence.   See United  States v.                                                      ___ ______________          Kearney, 682  F.2d 214, 221-22  (D.C. Cir. 1982)  (  2255 motion,          _______          based  on ground that key testimony was coerced and perjured, was          denied where other unchallenged evidence conclusively established          guilt).          D.   Sentencing Disparity          D.   Sentencing Disparity               ____________________                    Finally,  we reject  the claim  that Rivera,  allegedly          less  culpable than Jimenez,  should not  have received  a longer          term  of imprisonment.    This claim  unsuccessfully attempts  to          resurrect  issues previously  addressed  on direct  appeal.   See                                                                        ___          Jimenez-Rivera, 842 F.2d at 548-50.            ______________                                          19                    Affirmed.                    Affirmed.                    ________                                          20
