
USCA1 Opinion

	




          April 6, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1013                                     UNITED STATES,                                      Appellee,                                          v.                              ELLERTON P. WHITNEY, III,                                Defendant, Appellant.                                                                                      ____________________        No. 95-1014                              ELLERTON P. WHITNEY, III,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Shane Devine, Senior U.S. District Judge]                                       __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Cyr and Boudin, Circuit Judges.                                           ______________                                 ____________________            Ellerton P. Whitney, III on brief pro se.            ________________________            Paul M. Gagnon, United States Attorney,  and Peter E. Papps, First            ______________                               ______________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Defendant Ellerton P. Whitney  appears                      __________            in this court for the fifth time in connection with  his 1991            bank fraud conviction.   He here appeals from the denial of a            request  for post-conviction  relief--a request  styled as  a            motion for  new trial under  Fed. R. Crim.  P. 33 or,  in the            alternative, as a petition for relief under 28 U.S.C.   2255.            For  the following reasons, as  well as those  recited by the            district court, we affirm.                  The instant request  for relief was  prompted by  events            occurring   during   Whitney's   earlier   appeal   from  his            resentencing.  Whitney  notes that the  government there,  in            addressing the amount of loss for purposes of calculating the            offense level, argued that the district court could  consider            losses  attributable to "uncharged  loans" under the relevant            conduct provision of the sentencing guidelines.  See U.S.S.G.                                                             ___              1B1.3.   He also notes  that we endorsed such  a measure in            our decision.   See United  States v. Whitney,  21 F.3d  420,                            ___ ______________    _______            slip  op.   at  5  (1st  Cir.  1994)   (per  curiam)  (table)            ("Especially considering that additional losses resulted from            uncharged  conduct  that  was  part  of  a  common scheme  or            plan,...   we   find  no   error   in   the  court's   [loss]            determination.").  In the belief that neither the presentence            report (PSR) nor the district court had made any reference to            uncharged   relevant   conduct,  Whitney   infers   that  the            government's (and  this court's)  reference pertained  to the            subsequent CRB and FCB loans.  From this premise, he proceeds            to  conclude,  inter alia,  that:  (1) this  court  "by clear                           __________            implication" found him not  liable for "61.4% of  the conduct            for which he was  specifically accused, tried, convicted, and            twice sentenced," Brief at 9-10;  (2) his conviction was thus            improperly based on charges  not appearing in the indictment;            and  (3) the  government's eleventh-hour  admission  of these            facts  constitutes  misconduct  warranting dismissal  of  the            indictment,  or  at least  "new  evidence"  warranting a  new            trial.                 Whitney's premise is wrong.  The PSR did, in fact, refer            to uncharged relevant  conduct (apart  from the  CRB and  FCB            loans).  See PSR   40  ("Nor does the figure above [referring                     ___            to  the  losses  specified  in  the  indictment]  reflect  an            approximately $100,000 loss to the Dartmouth Bank as part  of            the same  scheme presented  earlier in  this report.").   The            district court specifically  incorporated this amount in  its            loss  calculations.     See  4/27/93  Order   at  3;  4/26/93                                    ___            Transcript at 86.  And  the reference to "uncharged  conduct"            in  our earlier opinion was made with the Dartmouth Bank loss            in mind.                 In any  event, Whitney's  complaint here is  little more            than  a  rehash of  his  "variance"  argument that  has  been            rejected by this court on two previous occasions.  See United                                                               ___ ______            States v.  Whitney, supra, slip  op. at 2-3,  4-5 (rejecting,            ______     _______  _____            largely on  "law of the  case" grounds,  the allegation  that            "the three loans charged in the indictment actually consisted                                         -3-            of  some seven or more,  and that the  jury permissibly could            have convicted him on only a portion thereof"); United States                                                            _____________            v. Whitney, 991 F.2d 786, slip  op. at 4 (1st Cir. 1993) (per               _______            curiam)  (table)  (finding no  plain  error  with respect  to            allegation that  "the  evidence showed  different  fraudulent            loans  than  those  charged  in  the  indictment").    Issues            disposed  of  in  a prior  appeal,  of  course,  will not  be            reviewed  again  by  way of  a     2255 motion.    See, e.g.,                                                               ___  ____            Singleton v.  United States,  26 F.3d  233,  240 (1st  Cir.),            _________     _____________            cert.  denied, 115  S.  Ct. 517  (1994).   We  also  observe,            _____________            contrary to Whitney's suggestion, that our decision in United                                                                   ______            States  v.  Lilly, 983  F.2d 300  (1st  Cir. 1992),  does not            ______      _____            constitute "supervening" law, but rather was issued one month            prior to oral argument in his initial appeal.                 Affirmed.                 _________                                         -4-
