      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                     For the First Circuit


No. 00-2118

                    RICHARD J. DECATO, JR.,

                    Petitioner, Appellant,

                              v.

                        UNITED STATES,

                     Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                            Before

                     Lynch, Circuit Judge,
                   Cyr, Senior Circuit Judge,
                   and Lipez, Circuit Judge.



    Richard DeCato on memorandum pro se.



                       November 27, 2002
       Per Curiam.         Petitioner Richard J. DeCato Jr. has applied for

a certificate of appealability (COA) in order to appeal from the

dismissal of his habeas petition under 28 U.S.C. § 2255.                                           To

qualify for a COA, he must make "a substantial showing of the

denial of a constitutional right."                                 Id. § 2253(c)(2).             This

standard requires a demonstration that "reasonable jurists could

debate whether ... the petition should have been resolved in a

different manner or that the issues presented were <adequate to

deserve encouragement to proceed further.'" Slack v. McDaniel, 529

U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880,

893    n.4   (1983)        (internal      quotation               marks      omitted)).        Having

scrutinized petitioner's submissions and the relevant parts of the

record, we conclude that this standard has not been met.

       Pursuant to a written plea agreement, petitioner pled guilty

in    1994   to    one     count     of   engaging                in    a    continuing      criminal

enterprise        (CCE),     21    U.S.C.      §       848,       and       to   seventeen    related

charges.     He was sentenced in 1995 to a prison term of 308 months.

Petitioner pursued no direct appeal.                              In May 2000, he filed the

instant § 2255 petition, setting forth six claims that mainly

complained of ineffective assistance on the part of counsel.                                     In a

margin order, the district court summarily denied the petition as

untimely.         See      28   U.S.C.     §       2255       ¶    6    (prescribing         one-year

limitations period); see also Rogers v. United States, 180 F.3d

349,    353-55      (1st    Cir.    1999)      (adopting                one-year     grace     period


                                                   2
commencing on AEDPA's effective date of April 24, 1996), cert.

denied, 528 U.S. 1126 (2000).     The court thereafter denied a COA.

     It is possible that at least one of petitioner's claims--that

relying on Richardson v. United States, 526 U.S. 813 (1999)--was

timely filed.    See, e.g., United States v. Lopez, 248 F.3d 427,

430-32 (5th Cir.) (applying Richardson retroactively to case on

collateral review pursuant to § 2255 ¶ 6(3)), cert. denied, 122 S.

Ct. 222 (2001).      It is also at least arguable that a timely

Richardson claim would mean that the entire petition was timely.

Rather than delve into the knotty issues surrounding application of

the limitations period here, we prefer to dispose of the claims on

the merits. We conclude that, regardless of the correctness of the

district   court's   procedural   ruling,   petitioner   has   failed   to

demonstrate "that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional

right."    Slack, 529 U.S. at 484.

     First.     Petitioner's first claim, which relies on Roe v.

Flores-Ortega, 528 U.S. 470 (2000), complains of counsel's failure

to file a direct appeal.      Even on the arguendo assumption that

Flores can be invoked here, this claim falls short.            Petitioner

acknowledges in his affidavit that he and counsel discussed the

possibility of appealing on at least three occasions following

imposition of sentence.    At no point does petitioner suggest, much

less aver, that he gave counsel "specific instructions" to file a


                                     3
notice of appeal.     Id. at 477.   His complaint instead amounts to a

disagreement with counsel's advice, which does not constitute a

Flores violation.     In turn, even if the discussions with counsel

fell short of a "consult[ation]" as the Court defined that term,

see id. at 478--a matter we do not decide--we think it clear for

three reasons that no constitutional violation would have obtained.

First, the conviction here followed a guilty plea, which the Court

deemed a "highly relevant factor."         Id. at 480.   Second, although

calculated in different fashion, the sentence imposed was virtually

identical to that contemplated by the plea agreement.              See id.

(describing    as   pertinent   "whether   the    defendant   received   the

sentence bargained for as part of the plea").         And third, a review

of petitioner's other assignments of error suggests they would have

had negligible prospect of success.          Under these circumstances,

Flores imposed no obligation on counsel to do more than he did.

     Second.    Petitioner next asserts that he was entitled to some

sentencing     reduction   to   reflect     his   cooperation    with    the

government.1    Yet as he acknowledges, an anticipated motion for

downward departure under U.S.S.G. § 5K1.1 was not pursued because

he refused to testify at the trial of his codefendants--something

the plea agreement obligated him to do.           And as he now concedes,


     1
       As with his other sentencing challenges, this argument, to
the extent advanced as a substantive claim independent of any
ineffective-assistance charge, would not be cognizable on
collateral review. See, e.g., Knight v. United States, 37 F.3d
769, 771-74 (1st Cir. 1994).

                                    4
his earlier reliance on § 5K2.0 was misplaced.   See, e.g., United

States v. Alegria, 192 F.3d 179, 189 (1st Cir. 1999).

     Third. Petitioner also complains that he failed to receive an

additional two-point reduction in his offense level as contemplated

by the plea agreement. That stipulation concerned a deduction "for

time served as a result of the federal prosecution in the District

of Maine, to conform with the intent [of U.S.S.G.] § 5G1.3."   The

presentence report (PSR) understandably voiced confusion about this

provision, inasmuch as § 5G1.3 provides a mechanism for addressing

a "prior unexpired term of imprisonment" and the Maine prison term

had already expired. Regardless, the PSR compensated under § 5G1.3

by affording petitioner full credit for time served on an unexpired

term of imprisonment in New Hampshire--a proposal not included in

the plea agreement.   The ensuing sentence (308 months, commencing

in mid-December 1995) was virtually identical to that recommended

by the plea agreement (324 months, commencing in late July 1994).

Petitioner's assertion that he should have received both the plea

agreement's two-level reduction and the PSR's sixteen-month credit

ignores the fact that those two calculations were alternative means

of implementing § 5G1.3.

     Fourth. Petitioner also objects to his sentencing enhancement

for obstruction of justice.   Under the 1989 version of U.S.S.G. §

3C1.1, a two-level increase was warranted if petitioner "willfully

impeded or obstructed ... the administration of justice during the


                                5
investigation or prosecution of the instant offense."                     The plea

agreement recommended such an enhancement, as did the PSR, which

noted that petitioner had been "a fugitive from justice from the

New Hampshire courts since 1982." Petitioner does not dispute that

his fugitive status obstructed justice in the state prosecution.

Yet he argues that, because the federal investigation allegedly did

not commence until after his recapture in 1990, he engaged in no

obstructive behavior "during the investigation or prosecution of

the instant offense."

     Given the close connection between the state and federal

offenses, this contention likely fails for the reasons recited in

United States v. Emery, 991 F.2d 907, 910-12 (1st Cir. 1993).

Regardless, even if the § 3C1.1 enhancement were open to challenge,

petitioner has not made out a claim of ineffective assistance. His

complaint is that counsel should have objected to that enhancement

at sentencing or on appeal.         Yet such a course likely would have

nullified the plea agreement and thereby raised the prospect of a

longer sentence.       We recently rejected an ineffective-assistance

claim under analogous circumstances.               See Cofske v. United States,

290 F.3d 437, 443-45 (1st Cir. 2002).

     Fifth.     Petitioner's next challenge is to the use of the 1989

version   of    the   sentencing   guidelines.           Because   that    version

increased      the    penalties    for       tax    violations,    and     because

petitioner's tax offenses were completed before that amendment took


                                         6
effect, he argues that the Ex Post Facto Clause required use of the

1988   version     of   the   guidelines.           This      contention,   however,

overlooks the policy statement in U.S.S.G. § 1B1.11(b)(3) and

accompanying commentary, which supports the choice of guidelines

made here.      See also United States v. Regan, 989 F.2d 44, 48-49 (1st

Cir. 1993). Moreover, petitioner's claim of prejudice rests on the

questionable      premise     that   the       remedy   for    any   ex   post   facto

violation would be to apply the 1988 guidelines, not just to his

tax offenses, but to all counts of conviction.                   See, e.g., United

States v. Sullivan, 255 F.3d 1256, 1263 (10th Cir. 2001) (rejecting

similar argument on ground that it would produce "anomal[ous]"

result whereby commission of additional crimes resulted in lower

overall sentence), cert. denied, 534 U.S. 1166 (2002).                       We also

note that the plea agreement endorsed use of a post-1988 version of

the guidelines.      Again, therefore, any challenge along these lines

might have nullified the agreement and threatened an increased

sentence.    Counsel cannot be faulted for eschewing such a course.

       Sixth.     Petitioner's final claim relies on Richardson, in

which the Court held that the jury must unanimously agree which

specific drug violations make up the "continuing series" for a CCE

conviction.      In a two-pronged argument, petitioner alleges that,

because he was not informed of this requirement, (1) his guilty

plea was not knowing, intelligent and voluntary, and (2) his

counsel rendered ineffective assistance.                   The first part of this


                                           7
claim, not having been raised on direct appeal, is procedurally

defaulted.   See, e.g., Cody v. United States, 249 F.3d 47, 51-52

(1st Cir. 2001).   It thus may be pursued on collateral review only

if petitioner can demonstrate either "cause" and "prejudice" or

"actual innocence."   See, e.g., Bousley v. United States, 523 U.S.

614, 622 (1998).   Petitioner has made none of these showings.

     As explained in United States v. Scott, 218 F.3d 835, 837-39

(8th Cir.), cert. denied, 531 U.S. 1000 (2000), the unanimity

question was not sufficiently novel at the time of petitioner's

conviction so as to provide cause for the failure to raise it;

indeed, petitioner himself acknowledges that one circuit court had

held in 1988 that unanimity was required in this context.   In turn,

just as in United States v. Lopez, 248 F.3d 427, 433 (5th Cir.),

cert. denied, 122 S. Ct. 222 (2001), we find no prejudice (or

actual innocence).    Petitioner did not object to the PSR, which

contained a detailed account of his drug activity over the course

of more than a decade.2   And he admitted in the plea agreement that

$3 million in cash and thirteen separate properties were subject to

forfeiture as a result of such activity. Against this backdrop, we

think it inconceivable that a jury would have failed to agree



     2
        To cite just three examples: petitioner distributed over
fifty kilograms of cocaine and thousands of pounds of marijuana
during the 1980s and netted over $3 million from such sales (PSR ¶¶
9 & 10); he visited his customer base on a weekly or bi-weekly
basis (¶ 28); and one customer purchased a kilogram of cocaine per
month from him for several years (¶ 30).

                                  8
unanimously upon three CCE predicates (or that petitioner could

reasonably have so thought at the time of his plea).   Petitioner's

only attempts at a rebuttal--that his drug sales were unrelated

events and that he played no supervisory role--are belied by the

record.   This lack of prejudice, in turn, also suffices to dispose

of the ineffective-assistance component of the Richardson claim.

Accord, e.g., Scott, 218 F.3d at 238.

     For these reasons, the application for a COA is denied and the

appeal is terminated.




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