
USCA1 Opinion

	




          July 20, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2326                               NESTOR FERNANDO-MANRIQUE,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Walter Jay Skinner, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Nestor Fernando-Manrique on brief pro se.            ________________________            A. John Pappalardo,  United States Attorney, and Jeffrey A. Locke,            __________________                               ________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                                       Per Curiam.    Appellant  Nestor  Fernando-Manrique                      __________            appeals  from  the  denial of  his  motion to  set  aside his            sentence under 28  U.S.C.   2255.  We have carefully reviewed            the record,  the parties'  briefs  and the  district  court's            decision.   Based  on  the  detailed  and  diligent  analysis            contained in  Judge Skinner's  23-page  Memorandum and  Order            which disposes of most of  appellant's claims, we affirm  the            court's judgment  for essentially  the reasons  Judge Skinner            has   stated.      However,    the   Memorandum   and   Order            understandably,  given  the  prolix  nature   of  appellant's            pleadings, failed to  identify two issues.   We therefore add            the following.                      The first claim  is that the PSI  failed to contain            any   information  concerning  the amount  or  purity of  the            cocaine involved  in appellant's offense.   Appellant alleges            that due to the omission of this information from  the PSI he            has been denied hearings before the Parole Commission on four            occasions.    The  Court of  Appeals  for  the Third  Circuit            rejected a similar claim concerning an omission in the PSI of            any information concerning the drugs involved in the  offense            in United States v. Katzin, 824 F.2d 234 (3d Cir. 1987).  The               _____________    ______            court stated:                           In  this case,  Katzin  objects that                      because  the   PSI  never  included   the                      disputed  facts,   the   court   had   no                      opportunity  to make  findings.   But the                      very fact  that  the court  did not  even                      have  the  information  available  to  it                      demonstrates that  it did not rely on the                      disputed facts in  making the  sentencing                      decision.   This  lack of  reliance means                      that there was no prejudice to the actual                      sentencing decision.  In  addition, there                      could  be  no  misleading  of  parole  or                      prison  officials  because  the  disputed                      information did not come to them with any                      indication of judicial approval.            Id. at 239-40.  Because appellant cannot demonstrate that the            ___            sentencing   court  relied  on  the  information,  he  cannot            establish that  he was  prejudiced.   Appellant  is not  left            without remedies, however.   Under the parole regulations, he            may dispute  any information that the  Parole Commission uses            in  setting his parole status.  See  28 C.F.R.   2.19(c).  He                                            ___            also  may appeal a  parole decision  to the  National Appeals            Board.  See id.   2.26.                    ___ ___                      The  second  claim   is  that  the   PSI  contained            erroneous   information   concerning  the   estimated  parole            guidelines.1   Specifically,  appellant points  out, and  the            government  agrees, that  the  Salient Factor  Score of  Four            listed  in the  PSI  is wrong.    This score,  combined  with            appellant's Offense  Severity rating of Five,  resulted in an            estimate of 48  to 60 months  imprisonment before release  on                                            ____________________            1.  The Parole Commission uses  two variables to set probable            parole ranges.  The  first is the "Offense Severity"  and the            second is the "Salient  Factor Score."  See 28 C.F.R.   2.20.                                                    ___            This score  represents a  defendant's prior criminal  history            and  predicts the  risk  of  parole  violation.    Id.    The                                                               ___            probation officer  combines the two  scores to  arrive at  an            estimate  relative to how  much time an  inmate probably will            serve before being released on parole.                                         -3-            parole.  Rather, due to the fact that appellant  has no prior            convictions,  the proper Salient  Factor Score is  Ten.  This            would reduce the  customary time served before  release to 24            to 36 months.   Appellant essentially  argues that the  judge            relied on the  48-60 month estimate in  imposing the ten-year            sentence.  Applying the correct Salient Factor Score  of Ten,            appellant  calculates, should  have resulted  in a  five-year            sentence.                      This  claim fails.    Although it  is  true that  a            sentence  based  on   "misinformation  of  a   constitutional            magnitude" or  "materially untrue"  assumptions  of fact  may            violate due process,  United States v. Tucker,  404 U.S. 443,                                  _____________    ______            447  (1972),  not  every  type  of  error  is  cognizable  on            collateral attack.  See United  States v. Addonizio, 442 U.S.                                ___ ______________    _________            178,  186 (1979) (section 2255 relief based on errors of fact            available only  where such  errors are fundamental  in nature            and are essential to the  "`validity of the legal  proceeding            itself'") (citation  omitted).  In United States v. Dean, 752                                               _____________    ____            F.2d 535 (11th Cir. 1985), cert. denied, 479 U.S. 824 (1986),                                       _____ ______            the court held that Addonizio "completely foreclose[d] Dean's                                _________            argument that  the sentence was `illegal'  merely because the            sentencing judge  was mistaken about the length  of time Dean            would  likely  serve  prior to  parole."    752  F.2d at  543            (footnote omitted).                           The  Court's  message  in  Addonizio                                                      _________                      could not have  been stated more clearly.                                         -4-                      A  sentence  is   not  "illegal"   simply                      because  the  original  sentencing  judge                      mistakenly   believed  that   the  Parole                      Commission  would  release the  defendant                      before  the end  of the  defendant's full                      sentence.  Whether the sentencing judge's                      belief  was  based  on  the  judge's  own                      knowledge of the  parole system  or on  a                                                       ________                      prediction  contained in  the presentence                      _________________________________________                      report is irrelevant.                      ____________________            Id. at 544 (emphasis added).            ___                      In any event, what is fatal to appellant's claim is            the fact that the district court  did not rely on the Salient            Factor  Score at all in its sentencing determination.  At the            hearing, the court stated that it based the ten-year sentence            on   the  recommendation   contained  in   the  PSI.     This            recommendation is  not  released to  the parties;  out of  an            abundance  of  caution, we  obtained  it  from the  Probation            Department.    Upon review,  it is  plain that  the probation            officer placed  no reliance  on the estimated  parole release            range, much less  on the  Salient Factor Score.   Indeed,  no            reference  was  made to  the  "Sentencing  Data" sheet  which            contains this information.                      Appellant's claim that Egbert  provided ineffective            assistance of counsel  in violation of the Sixth Amendment by            not  bringing  the  erroneous  Salient Factor  Score  to  the            court's  attention  falls  short for  the  same  reason.   To            prevail  on such  a  claim, appellant  must demonstrate  that            Egbert's   professional  conduct  fell   below  an  objective            standard   of   reasonableness   and  that   his   "deficient                                             ___                                         -5-            performance" had a detrimental  effect on the judgment.   See                                                                      ___            Strickland  v. Washington,  466  U.S. 668,  687, 691  (1984).            __________     __________            Because the court did not rely on the mistaken Salient Factor            Score in arriving at a sentence, Egbert's failure to raise it            could not have prejudiced appellant.                      It is,  of course, possible  that the error  in the            Salient  Factor Score  could  complicate  matters before  the            Parole  Board.  Having received  a sentence twice  as long as            the government  recommended, we think that  the appellant has            suffered enough misfortune without  adding to it the  risk of            any further misunderstanding about  his prior history.  Since            the  government  has conceded  in  its  brief that  the  true            Salient Factor  Score is  Ten,  a favorable  figure, we  will            direct  that a  copy of  this opinion  be transmitted  by the            Clerk  directly to  the  Parole Board  with a  letter drawing            attention to this paragraph.                      Based  on  the  foregoing,  the  judgment  of   the            district  court  is affirmed.    We  strike the  supplemental                                ________            appendix  filed by  appellant;  it contains  a transcript  of            Georgeau's  grand jury appearance  which was not  part of the            record below.  We also  deny appellant's motion to reconsider            our  order  refusing  his  request  to  hold  his  appeal  in            abeyance.                      It is so ordered.                      ________________                                         -6-
