
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1369                                 NICHOLAS R. MARINO,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                          and Bownes, Senior Circuit Judge.                                      ____________________                                                                            ____________________               Cheryl J. Sturm on brief for appellant-petitioner.               _______________               James  H. Leavey, Assistant United States Attorney and Edwin               ________________                                       _____          J. Gale, United States Attorney on brief for respondent.          _______                                 ____________________                                    July 30, 1993                                 ____________________                      PER  CURIAM.   Petitioner Marino  was indicted  for                      ___________            conspiracy  to  distribute  and  possession  with  intent  to            distribute  1,000 kilograms or more of marijuana in violation            of 21 U.S.C.    841(a)(1),  (b)(1)(A)(vii) and 846 (Count I),            and  attempting  to  possess with  intent  to  distribute one            hundred kilograms  or more  of marijuana  in violation of  21            U.S.C.    841(a)(1), (b)(1)(B)(vii) and 846, and  18 U.S.C.              2  (Count III).   Marino  entered a  plea agreement  with the            government pursuant to  which he pled guilty to  Count III of            the indictment which  had been amended to delete  a reference            to  the specific  quantity of  marijuana involved.   For  its            part, the government agreed to dismiss Count I and  recommend            the  minimum sentence  under  Count  III  at  the  sentencing            hearing.  Marino was sentenced to an eighty-two month term of            incarceration, which sentence  was upheld on appeal.   United                                                                   ______            States v. Marino, 936 F.2d 23 (1st Cir. 1991).  Subsequently,            ______    ______            Marino  filed a motion under 18  U.S.C.   2255 to vacate, set            aside or correct his sentence.   The district court summarily            denied  the motion without conducting an evidentiary hearing.            Marino appeals, and, finding no error, we affirm.                      The  background of this case was reported in detail            by this  court in  its opinion  affirming Marino's  sentence.            Marino, 936 F.2d 23 (1st Cir. 1991).  We therefore will pause            ______            only  long enough to highlight  relevant facts in the context            of Marino's two claims.                                         -2-                                          2                                          I                                          I                            Lack of an Evidentiary Hearing                            Lack of an Evidentiary Hearing                            ______________________________                      Marino claims  that  the district  court  erred  in            denying  his motion  without the  benefit  of an  evidentiary            hearing.  Specifically, he contends that, because no rational            explanation  was provided  to  explain  his  trial  counsel's            "paradoxical"  advice,   the  court   should  have   held  an            evidentiary hearing.  The  advice to which Marino refers  was            the following:  Counsel advised Marino against going to trial            because the jury would not believe his story that he was only            interested   in   purchasing   one   pound   of   marijuana.1            Subsequently,  counsel advised  Marino to give  his one-pound            purchase  claim to  the Probation  Department  in a  prepared            statement, and  to repeat it  under oath  at the  presentence            evidentiary hearing.                      Marino followed counsel's advice.   The trial judge            did not believe Marino's story, and found instead that Marino                      was  involved  in   a  transaction  which                      involved  more than  100  kilograms of  a                                            ____________________            1.   In a letter to petitioner, counsel stated:                      It is obvious to me  that you will not be                      able to testify.   In the event  you wish                      to do so, however, that option  is yours.                      It is my strong feeling that in the event                      you do  testify, you would  hurt yourself                      more than help,  and that the  government                      could,    quite    easily,    prove   the                      allegations necessary  to convict  you in                      Count No.  III, based  on your own  prior                      statement and the testimony of the  other                      defendants.                                         -3-                                          3                      substance containing a  detectable amount                      of marijuana, that  is, 500 pounds,  that                      the   deal   was,   and   as   the   tape                      demonstrated,  it  was  going to  be  500                      pounds  at a time or maybe 1000 pounds at                      a  time  until  we got  to  the  ultimate                      amount.    So  that  I'm  satisfied  with                      respect to the third count that there was                      more than 100  kilos that Mr.  Marino was                      involved with.            That finding was upheld by this court on appeal.  Marino, 936                                                              ______            F.2d at  27-29.  Three consequences flowed  from the finding:            first, Marino's  base offense  level was  set at  26; second,            Marino  was not given credit for acceptance of responsibility            because he only  acknowledged his guilt  with respect to  one            pound  of marijuana; and  third, the court  added a two-level            upward adjustment for  obstruction of  justice, finding  that            Marino had lied at the presentence evidentiary hearing and in            his  statement of acceptance  of responsibility.   This court            affirmed these decisions on appeal.   Marino, 936 F.2d at 27-                                                  ______            32.                      Marino now claims  that had he been  advised of the            possible  consequences  of  his statement  to  the  Probation            Department and his  testimony at the presentence  hearing, he            would have presented his story through  third-party witnesses            rather than testifying on his own behalf.  He alleges that he            presented  the  district court  with  a prima  facie  case of                                                    _____  _____            ineffective  assistance  of  counsel, and  that  the district            court erred in dismissing his claim without the benefit of an            evidentiary hearing.  We disagree.                                         -4-                                          4                      Section 2255 provides that a petitioner is entitled            to an evidentiary hearing on  his motion "[u]nless the motion            and the files and records  of the case conclusively show that            the prisoner  is entitled to  no relief."   Rule 4(b) of  the            Rules Governing Section 2255 Proceedings in the United States            District Courts provides  that "[i]f it plainly  appears from            the face of the motion and any annexed exhibits and the prior            proceedings in  the case that  the movant is not  entitled to            relief in the  district court, the judge shall  make an order            for  its  summary  dismissal  and  cause  the  movant  to  be            notified."  This court has summarized the rule as follows:                      [A] petition can  be dismissed without  a                      hearing if the  petitioner's allegations,                      accepted as  true, would not  entitle the                      petitioner   to   relief,   or   if   the                      allegations  cannot be  accepted as  true                      because  "they  are contradicted  by  the                      record,    inherently    incredible,   or                      conclusions  rather  than  statements  of                      fact."    Dziurgot  v. Luther,  897  F.2d                                ________     ______                      1222, 1225 (1st Cir. 1990) (quoting Myatt                                                          _____                      v. United  States,  875 F.2d  8, 11  (1st                         ______________                      Cir. 1989)).              United States v.  Rodriguez-Rodriguez, 929 F. 2d  747, 749-50            _____________     ___________________            (1st Cir. 1991).                      Petitioner claims  that his  counsel's inconsistent            advice,  because it resulted  in an increase  in petitioner's            offense   level,   constituted,   ipso   facto,   ineffective                                              ____   _____            assistance   of  counsel.    The  legal  standard  is  clear.            Petitioner  must show  both that  counsel's performance  fell            below  an  objective  standard  of  reasonableness  and  that                                         -5-                                          5            prejudice  resulted.  Strickland v. Washington, 466 U.S. 668,                                  __________    __________            687 (1984).  See also Lopez-Nieves v. United States, 917 F.2d                         ___ ____ ____________    _____________            645, 648  (1st Cir.  1990).   Counsel's  performance must  be            examined  "not in  hindsight, but  based on  what the  lawyer            knew, or should have known,  at the time his tactical choices            were made and  implemented."  United  States v. Natanel,  938                                          ______________    _______            F.2d 302, 309 (1st Cir.  1991), cert. denied, 112 S.  Ct. 986                                            _____ ______            (1992).  The "range of reasonable professional assistance" is            quite wide.  See Strickland, 466 U.S. at 689.   Therefore, as                         ___ __________            the   Supreme  Court  has   noted,  "[j]udicial  scrutiny  of            counsel's performance must be highly deferential."  Id.                                                                ___                      We cannot  say that  defense counsel's  performance            was unreasonable.  As the court below held,                      [I]n  making   decisions  regarding   the                      propriety of having Petitioner testify at                      a trial and at  a presentence evidentiary                      hearing, defense counsel  had to evaluate                      two very distinct  sets of circumstances.                      In  deciding that  Petitioner should  not                      testify at trial, defense counsel had  to                      take into account the considerable wealth                      of  government  evidence.  .  .  .     In                      deciding to permit  Petitioner to testify                      at his  presentence evidentiary  hearing,                      however, defense counsel  was required to                      view the government's evidence in a  much                      different light.  Although the government                      possessed   an   abundance   of  evidence                      linking   Petitioner   with    the   drug                      transaction  generally, the  government's                      evidence concerning  the specific  amount                      involved  in  the  transaction  was  less                      persuasive.  See United States v. Marino,                                   ___ _____________    ______                      936 F.2d at 28[-29].  Given  the strength                      of the  government's evidence  connecting                      Petitioner  with some  sort of  marijuana                      purchase  and  the   ambiguities  in  the                                         -6-                                          6                      government's   evidence  concerning   the                      amount of  marijuana, it  cannot be  said                      that defense counsel's  advice concerning                      either  matter  fell below  an  objective                      standard of reasonableness.            Marino v.  United States, No.  92-0503B, Mem. and Order  at 4            ______     _____________            (D.  R.I. February 23, 1993).  Petitioner erroneously assumes            that  giving different  advice with  respect to  an  issue at            different stages  of a  prosecution is  per se  unreasonable.                                                    ___ __            The district  court acted  within its  discretion in  denying            petitioner's  motion  without   benefit  of  an   evidentiary            hearing.    Nothing would  have  been  added  to the  court's            understanding of the  issue by holding a  hearing, especially            when the same  court that denied the    2255 motion heard the            relevant evidence at sentencing.                      Even were we to accept petitioner's contention that            counsel's advice was unreasonable, we  fail to see how he was            prejudiced   by   that  advice.     Petitioner   claims  that            "[p]rejudice in  the case  at bar  is  readily identified  in            mathematical terms.  The Guideline Range  would have been 51-            63  months had  the defendant  been  given consistent  advice            about not giving a statement  to the Probation Department and            not  taking the  witness stand  at the  Fatico hearing."   We                                                    ______            disagree.   Petitioner had much  to gain by testifying.   Had            the  court believed him,  the sentencing guideline  range for            the  base offense level would  have dropped from 63-78 months            to  2-8  months.   As  the  court  below held,  "[g]iven  the                                         -7-                                          7            tremendous  reduction in sentence Petitioner stood to gain by            successfully challenging the  amount of marijuana, the  court            cannot say that  `but for' defense  counsel's lack of  advice            Petitioner  would  have   decided  not  to  testify   at  the            presentence evidentiary hearing."   Marino v.  United States,                                                ______     _____________            No. 92-0503B, Mem. and Order at 6.                      In  sum, petitioner's  allegations,  to the  extent            they  are factual, "would  not entitle petitioner  to relief"            under  section  2255, Rodriguez-Rodriguez,  929 F.2d  at 749;                                  ___________________            and, to the extent they are conclusory, need not be credited.            See id.  at 740-50.   Hence, an  evidentiary hearing  was not            ___ ___            required.                                          II                                          II                             Amendment of the Indictment                             Amendment of the Indictment                             ___________________________                      Count III of Marino's original indictment stated:                         The Grand Jury further charges:                         That on or about December 19, 1989, in                      the   District   of  Rhode   Island   and                      elsewhere, defendant  NICHOLAS R.  MARINO                      did attempt to possess with the intent to                      distribute  100 kilograms  or  more of  a                      mixture   or   substance   containing   a                      detectable   amount   of   marihuana,   a                      Schudule [sic] I  Controlled Substance in                      violation  of  Title  21,  United  States                      Code,     Sections     841(a)(1)      and                      (b)(1)(B)(vii).                         All in  violation of Title  21, United                      States Code,  Section 846  and Title  18,                      United States Code, Section 2.            As part of his plea  agreement with the government, the words            "100 kilograms or more of" were deleted  from the indictment,                                         -8-                                          8            by order of the court, prior to his entry of a plea of guilty            to Count III.   The petitioner, the government  and the court            all agreed  that the  amount  of marijuana  which Marino  had            attempted to  purchase was not  an element of the  crime with            which  he  had  been  charged,  but  rather  that  it  was  a            sentencing  issue  to   be  determined  by  the  court  in  a            presentence  evidentiary hearing  prior to  sentencing.   See                                                                      ___            United  States v.  Barnes, 890  F.2d 545,  551 n.6  (1st Cir.            ______________     ______            1989), cert. denied, 494 U.S. 1019 (1990).                   _____ ______                      After the modification, Count III of the indictment            stated that Marino "did attempt to possess with the intent to            distribute a  mixture or  substance  containing a  detectable            amount  of marihuana, a Schudule [sic] I Controlled Substance            in  violation of  Title  21,  United  States  Code,  Sections            841(a)(1)  and  (b)(1)(B)(vii)."    It  is  unclear  why  the                       ___________________            reference  to a violation of   841(b)(1)(B)(vii) was not also            deleted.  That  provision provides for a  mandatory five-year            minimum  sentence for violations  of   841(a)  involving "100            kilos  or  more  of  a  mixture  or  substance  containing  a            detectable   amount   of   marijuana."       21   U.S.C.                 841(b)(1)(B)(vii).                      Although  a hypertechnical  reading of  the amended            indictment could therefore lead to the conclusion that Marino            did, despite his  best efforts, plead guilty to attempting to            possess more than one hundred kilos of  marijuana, we decline                                         -9-                                          9            to so read  the record.  It  is clear from the  transcript of            the plea hearing  that Marino did not intend  to plead guilty            to an attempt to possess  with intent to distribute more than            one  pound of  marijuana.    It is  likewise  clear that  the            government  was  amenable  to  his  plea  of  guilty   to  an            undetermined quantity  of marijuana,  and that  the issue  of            quantity would be determined by the court  at a presentencing            hearing.   In  the course  of  the plea  colloquy, the  court            determined that Marino  understood:  (1) the  maximum penalty            for the crime with which he was charged; (2) that the penalty            would depend upon the amount  of marijuana that he had sought            to purchase;  and, (3) that  the court  would determine  that            amount.                      Marino now claims that the court order deleting the            phrase  "100 kilograms  or more  of"  from Count  III of  the            indictment was an  improper amendment of the  indictment, and            that, as a result, the  court was divested of jurisdiction in            the  case.    Marino  concedes  that the  quantity  of  drugs            involved is  not an  element of an  offense charged  under 21            U.S.C.   841(a).   He claims, however, that  the quantity did            not constitute mere  surplusage in the indictment  because it            "notifies the accused of the exact nature of the charge," and            because "it alerts the defendant to the applicability  of the            penalty enhancement provision."                                         -10-                                          10                      Petitioner's  claims are  without merit.   As  this            court recapitulated in United States v. Angiulo,                                   _____________    _______                         "An  indictment  may  not  be  amended                      except by resubmission to the grand jury,                      unless the  change is merely  a matter of                      form," but withdrawal of a portion of the                      indictment  that  the evidence  does  not                      support   is    not   an    impermissible                      amendment, "provided  nothing is  thereby                      added  to the  indictment,  and that  the                      remaining allegations charge an offense."             847  F.2d 956,  964  (1st Cir.)  (quoting  United States  v.                                                        _____________            Winter,  663 F.2d  1120,  1139-40  (1st  Cir.  1981)),  cert.            ______                                                  _____            denied, 488 U.S. 928 (1988).  In this case, nothing was added            ______            to the  indictment by  the removal of  the reference  to "100            kilos  or more of"  marijuana, and the  remaining allegations            charged an  offense.  Indeed,  they charged the  offense with            which  Marino had originally  been charged:   possession with            intent to distribute marijuana.   Section 841(a) criminalizes            the possession with the intent to distribute  any quantity of                                                          ___            marijuana.  The quantity of  drugs involved is not an element            of the crime; rather  it is an issue to be  determined by the            judge at the time of sentencing.  See Barnes, 890 F.2d at 551                                              ___ ______            n.6.                      Marino's  contention  that  vital  information  was            deleted  from the  indictment is  rebutted by  the fact  that            Count III of the indictment, as amended, retained a reference            to 21 U.S.C.    841(b)(1)(B)(vii), thereby putting  Marino on            notice  as to  the potential  applicability  of the  enhanced                                         -11-                                          11            penalty provision.  Furthermore, the fact that the government            had  included the  "100 kilograms  or more"  language in  the            original  indictment, along with  the plea colloquy,  made it            clear to defendant that the government would contest Marino's            "one pound"  story at the time  of sentencing.  It  cannot be            said that the  amendment to the indictment resulted in unfair            prejudice or surprise to Marino.  He requested the amendment,            and demonstrated  an understanding  of the  implications that            amendment  would  have  for  the  sentencing  process.    The            amendment to the indictment was proper and did not divest the            district court of jurisdiction.                                         III                                         III                                      Conclusion                                      __________                      Finding  no error in  the judgment of  the district            court, the judgment is therefore summarily affirmed.  See 1st                                                                  ___            Cir. Loc. R. 27.1.                                         -12-                                          12
