
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1450                                    UNITED STATES,                                      Appellee,                                          v.                                   JEREMIAS GUZMAN,                                Defendant, Appellant.                                 ___________________        No. 96-1608                                    UNITED STATES,                                      Appellee,                                          v.                                   NATANAEL GUZMAN,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Ronald Ian Segal on brief for appellant, Jeremias Guzman.            ________________            William J. O'Hare on brief for appellant, Natanael Guzman.            _________________            Donald  K. Stern,  United  States Attorney,  William  F.  Sinnott,            ________________                             ____________________        Assistant  U.S.  Attorney, and  Patrick  M.  Hamilton, Assistant  U.S.                                        _____________________        Attorney, on brief for appellee.                                 ____________________                                    March 11, 1997                                 ____________________                 Per Curiam.    Jeremias and Natanael Guzman  appeal from                 __________            their  sentences on two  related grounds.   First, they argue            that the district  court erred in rejecting  their claim that            government   agents  had   engaged   in   sentencing   factor            manipulation by  requesting that  the cocaine they  purchased            from  appellants be  delivered  in crack  rather than  powder            form.  Second,   appellants contend  that the district  court            erred in denying their request for an  evidentiary hearing on            the sentencing  manipulation claim.  Natanael  Guzman filed a            supplemental  pro  se  brief   in  which  he  raised  several                          ___  __            additional issues.                  This   court  has   emphasized   that  "garden   variety            manipulation  claims are  largely  a waste  of  time. .  .  .            [S]entencing  factor manipulation  is  a claim  only for  the            extreme and unusual case."  United States v. Montoya, 62 F.3d                                        _____________    _______            1, 4 (1st Cir. 1995).  We agree with the district court that,            even assuming the truth of the facts alleged by appellants at            sentencing, appellants have  failed to demonstrate sentencing            manipulation  amounting to  "extraordinary misconduct."  Id.                                                                      ___            "Because manipulation  is largely a fact-bound  inquiry, even            the   district   court's   ultimate  judgment   whether   the            government's  conduct  is outrageous  or  intolerable  is not            lightly to be disregarded." Id. at 4.  We  decline to reverse                                        ___            that judgment here.                 The  district  court did  not  abuse  its discretion  in                                         -2-            denying appellants' request at sentencing  for an evidentiary            hearing  on  the  issue  of  sentencing factor  manipulation.            Under the  Sentencing Guidelines, "when  any factor important            to the sentencing determination is reasonably in dispute, the            parties  shall be  given an  adequate opportunity  to present            information  to the  court regarding  that factor."  U.S.S.G.             6A1.3.   In this case,  the facts in  the presentence report            were undisputed.   The district  court repeatedly  questioned            appellants at  sentencing about the facts that they sought to            prove by introducing evidentiary  evidence.  Rather than hold            a  formal hearing,  the court  assumed,  for the  purposes of            sentencing,  the truth  of those  alleged facts.   The  court            properly  concluded  that,   even  with  those   assumptions,            appellants  were  not  entitled  to an  adjustment  in  their            sentences.  There was no abuse of discretion.                 In his pro se supplemental brief, Natanael Guzman raises                        ___ __            several  additional  issues, none  of  which  entitle him  to            relief.   Natanael  objects belatedly to  certain evidentiary            matters  related to the grand jury proceedings.  Even had the            issues been  raised below  (which they apparently  were not),            Natanael's guilty plea  "effectuates a waiver of  any and all            independent  non-jurisdictional lapses  that may  have marred            the  case's progress  up  to that  point."  United States  v.                                                        _____________            Cordero, 42 F.3d  697, 699  (1st Cir. 1994).   Natanael  also            _______            waived  his constitutional right to  a speedy trial, not only                                         -3-            by failing to assert  the right, but also by  contributing to            the delay  when he moved for a continuance of the trial date.            See  Barker v.  Wingo, 407  U.S. 514,  529 (1972).   Finally,            ___  ______     _____            because Natanael did  not present his  ineffective assistance            claim  to the trial court  first, we decline  to consider it.            See  United  States v.  Guzman, 85  F.3d  823, 830  (1st Cir.            ___  ______________     ______            1996).                  The convictions and  sentences of Jeremias and  Natanael            Guzman are summarily affirmed. See Loc. R. 27.1.                       _________ ________  ___                                         -4-
