      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                     For the First Circuit


No. 00-2464

                     ARNALDO WILSON-LOPEZ,

                     Petitioner, Appellant,

                                 v.

                         UNITED STATES,

                     Respondent, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

        [Hon. José Antonio Fusté, U.S. District Judge]


                             Before

                       Boudin, Chief Judge,
              Torruella and Lynch, Circuit Judges.




     Arnaldo Wilson-Lopez   on    Petition    for   Certificate   of
Appealability, pro se.




                         JULY 24, 2001
    Per Curiam.         Arnaldo Wilson-Lopez seeks a certificate of

appealability (COA) to appeal from the denial of his motion

pursuant to 28 U.S.C. § 2255.           “It is well established that a

party may not unveil an argument in the court of appeals that he

did not seasonably raise in the district court.” David v. United

States, 134 F.3d 470, 474 (1st Cir. 1998). Therefore, we focus

exclusively on the issues identified in this COA which were also

raised below.     Wilson-Lopez seeks to vacate his conviction

following a guilty plea to Count One of the indictment, charging

him with conspiracy to possess with intent to distribute in

excess of 500 grams of heroin.            He asks that his sentence be

vacated and a new sentence imposed solely for his guilty plea to

Count Five, charging him with carrying a firearm during and in

relation to a drug trafficking offense.

    The ground on which Wilson-Lopez seeks § 2255 relief is

ineffective    assistance     of   counsel   in    the   form   of   1)   his

attorney’s    failure    to   investigate    and   discover     exculpatory

evidence with respect to Count One and 2) her advice that

petitioner     plead     guilty    to     Count    One    notwithstanding

petitioner’s protestations of innocence and inadequate factual

support for the plea.1


    1  Petitioner raises a claim pursuant to   Apprendi v. New
Jersey, 530 U.S. 466 (2000) in his COA. Even assuming that such
claim was raised before the district court, it is meritless.

                                    -3-
     Wilson-Lopez has not identified any exculpatory evidence

that his attorney failed to discover in advance of his guilty

plea, much less shown that such evidence “would have led counsel

to change his recommendation to the plea.” Hill v. Lockhart, 474

U.S. 52, 58 (1985).         Wilson-Lopez’ attempt to rely upon certain

affidavits of his co-defendants (included in their un-translated

form as a supplement to his § 2255 motion) is unavailing.                    The

affidavits were provided to Wilson-Lopez prior to the time that

he   pled    guilty    and    their     evidentiary        force   depends   on

credibility determinations by the fact finder.

     The record supports a finding that there was adequate

factual     support   for    the    guilty   plea.   The    evidence   against

Wilson-Lopez was strong.           He stipulated to arriving at the scene

of the pre-arranged drug sale with two co-defendants who were

directly involved in its negotiation.            There is a video tape of

him remaining on the scene in his parked car, holding a semi-

automatic weapon.       “Mere presence at the scene of a crime is

insufficient to prove membership in a conspiracy.” United States

v. Ocampo, 964 F.2d 80, 82 (1st Cir. 1992).                On the other hand,

“proof of direct participation in the sale of drugs is not

required to convict in a drug conspiracy case.” United States v.



Wilson-Lopez’ sentence was below the 40-year statutory maximum
and, therefore, there was no Apprendi-based error.

                                       -4-
Marrero-Ortiz, 160 F.3d 768, 773 (1 st Cir. 1998).             And “the

factfinder may fairly infer . . . that it runs counter to human

experience to suppose that criminal conspirators would welcome

innocent participants as witnesses to their crimes.” United

States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir. 1991).

    We agree with the district court’s statement in its Order

and Opinion denying the § 2255 motion, that Wilson-Lopez did not

“sufficiently detail how his participation in the conspiracy to

rob an individual bringing money for the drug transaction was

independent of the conspiracy to distribute narcotics.”               The

evidence is to the contrary, suggesting that any plan to rob the

purchaser of the drugs was in furtherance of the conspiracy to

possess and distribute heroin.

    Wilson-Lopez has failed to make a substantial showing of

ineffective assistance of counsel.         We agree with the district

court’s   finding    that   defense   counsel’s    recommendation    that

petitioner   plead   guilty   to   Count   One   was   reasonable.    The

request for a certificate of appealability is denied.2




    2 To the extent that petitioner is arguing that his guilty
plea was involuntary and unknowing because his attorney
misrepresented the sentence he could receive if he did not plead
guilty, that argument was rejected by this court on direct
appeal and may not be relitigated on collateral review. See
Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1994).

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