
USCA1 Opinion

	




        February 13, 1996       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1765                                 ANTONIO MANUELA-LAZU,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                                                          Torruella, Chief Judge,                                          ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Antonio Manuela Lazu on brief pro se.            ____________________            John  C. Keeney, Acting  Assistant Attorney  General, Theresa M.B.            _______________                                       ____________        Van  Vliet,  Chief,  Hope  P.  McGowan,  and  John  J.  Farley,  Trial        __________           _________________        ________________        Attorneys,  Narcotic and  Dangerous Drug  Section,  Criminal Division,        U.S. Department of Justice, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Defendant-appellant Antonio  Manuela-                      __________            Lazu appeals  from the district court's  summary dismissal of            his motion  under 28 U.S.C.    2255  to vacate, set  aside or            correct his sentence.  We affirm.                 Manuela  pleaded  guilty  to  one count  of  a  39-count            indictment  charging  him  and  numerous  co-defendants  with            conspiring  to  possess  with  intent  to  distribute  10,000            kilograms of cocaine and 1,000  kilograms of marihuana.   The            government and  Manuela stipulated,  for the purposes  of the            plea  agreement,   that  Manuela  was   responsible  for  the            importation or  distribution of "more than  150 kilograms but            less  than 500  kilograms of  cocaine, including  conduct for            which  the  defendant  would   be  otherwise  accountable  by            application  of  U.S.S.G.     1B1.3."   The  plea  agreement,            consistent with the stipulation, provided that the applicable            base offense level was 38.  The sentencing court accepted the            recommended base offense level and, accordingly, arrived at a            guideline sentencing range of  188 to 235 months.   The court            sentenced him to 188  months' imprisonment.  Manuela  did not            appeal.                 In his    2255 motion, Manuela claims  that the district            court's failure to make  an independent finding regarding the            quantity of drugs for  which he was individually responsible,            violated due  process.  "[F]ailure to  raise a constitutional            issue  [except ineffective  assistance of counsel]  on direct                                         -2-            appeal will bar raising the issue on collateral attack unless            the defendant  can  show cause  for  the failure  and  actual            prejudice." Knight  v. United States,  37 F.3d 769,  774 (1st                        ______     _____________            Cir. 1994).                 Manuela has failed to identify  a change in the relevant            law or any  other "cause" for  his failure  to raise his  due            process  argument  on  direct  appeal.   Accordingly,  it  is            unnecessary to address the  prejudice prong of the cause-and-            prejudice  test.    Nor   has  Manuela  demonstrated  that  a            fundamental  miscarriage  of  justice  will  result  from the            dismissal of his due process claim.   He has not claimed that            he entered  the stipulation involuntarily or  that the guilty            plea is in any way defective.  Moreover, the PSR reveals that            there is a reasonable factual basis for the quantity of drugs            that Manuela stipulated to.  See U.S.S.G.   6B1.4.                                         ___                 The  summary dismissal  of  Manuela's    2255 motion  is            affirmed.            ________                                         -3-
