                    [NOT FOR PUBLICATION]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.

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                              2

                              I

                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

                 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

                          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
