[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2024
ALFONSO A. BLANCO,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Alfonso A. Blanco on brief pro se.
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Lincoln c. Almond, United States Attorney, Margaret E.
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Curran and Kenneth P. Madden, Assistant United States Attorneys,
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on brief for appellee.
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June 9, 1993
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Per Curiam. The appellant, Alfonso Blanco, pleaded
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guilty in 1989 to three counts of possessing cocaine with
intent to distribute. The government had also charged Blanco
with two counts of attempted distribution, and one count of
conspiracy to distribute, but it dropped those charges in
return for Blanco's guilty plea. The district court,
following the Sentencing Guidelines, sentenced Blanco to 84
months in prison. Blanco appealed, challenging the sentence,
and we affirmed. United States v. Blanco, 888 F.2d 907 (1st
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Cir. 1989).
In 1992 Blanco filed a pro se "Motion for Findings of
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Fact Pursuant to FRCP 32 and Modification of Sentence
Pursuant to 28 United States Code Section 2255." The
district court denied the motion, and this appeal followed.
We affirm.
Blanco's primary claim is that his guilty plea was
"involuntary" because he received ineffective assistance of
counsel -- specifically, because his lawyer mistakenly
assured him that, if he pleaded guilty, he would receive only
a twenty-seven month prison sentence. Although Blanco
divides his brief into separate sections on involuntariness
and ineffective assistance, the Supreme Court has made it
clear that where a defendant pleads guilty on advice of
counsel, "the voluntariness of the plea depends on whether
counsel's advice 'was within the range of competence demanded
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of attorneys in criminal cases.'" Hill v. Lockhart, 474 U.S.
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52, 56 (1985) (quoting McMann v. Richardson, 397 U.S. 759,
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771 (1970)). Accordingly, we will treat Blanco's
involuntariness and ineffective assistance arguments as a
unit, focusing on the adequacy of counsel's advice.
In Hill v. Lockhart, the Supreme Court also made it
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clear that the two-part standard for evaluating claims of
ineffective assistance of counsel, first announced in
Strickland v. Washington, 466 U.S. 668 (1984), applies to the
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guilty-plea process. Hill, 474 U.S. at 57. The court must
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ask: (1) whether counsel's advice was within the range of
competence demanded of attorneys in criminal cases, and (2)
whether the defendant suffered "prejudice." Prejudice, in
this context, means "a reasonable probability that, but for
counsel's errors, [the defendant] would not have pleaded
guilty and would have insisted on going to trial." Id. at
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59.
A number of courts have held that a lawyer does not
render ineffective assistance if, while advising a client
about whether to plead guilty, the lawyer merely makes an
inaccurate prediction about the expected sentence. See,
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e.g., United States v. Arvanitis, 902 F.2d 489, 494 (7th Cir.
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1990); United States v. Sweeney, 878 F.2d 68, 69 (2d Cir.
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1989); United States v. Turner, 881 F.2d 684, 687 (9th Cir.
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1989). Cf. Iaea v. Sunn, 800 F.2d 861 (9th Cir. 1986)
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(though "mere inaccurate prediction" would not be ineffective
assistance, lawyer's "gross mischaracterization of the likely
outcome," combined with erroneous advice about possible
effects of going to trial, fell "below the level of
competence required of defense attorneys").
We need not determine whether the lawyer's lack of
clairvoyance here fell below the level of competence required
of defense attorneys, because we conclude that Blanco's
allegations were insufficient to satisfy the prejudice
requirement. Blanco never even told the district court that,
but for counsel's mistake, he would have pleaded not guilty
and insisted on going to trial, Hill v. Lockhart, 474 U.S. at
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60,1 and he has given us no reason to believe that the
faulty estimate of his sentence might actually have "affected
the outcome of the plea process" in that way. Id. at 59.
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The trial judge told Blanco in no uncertain terms at the plea
hearing that he would not be able to determine Blanco's
sentence until after the presentence report had been
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completed, that in passing sentence the court would not be
bound by the prosecutor's recommendation, and that the court
could even, in appropriate circumstances, depart upwards from
the Sentencing Guidelines range. Blanco told the court that
he understood these conditions. He then admitted his guilt
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1. Blanco made this assertion for the first time in his
appellate brief.
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under oath (and even today does not deny it), and received a
sentence which, though longer than his lawyer's prediction,
still was substantially shorter than the sixty-year statutory
maximum about which the court had also warned him. These
facts vitiate any contention that Blanco relied solely on his
lawyer's optimism in deciding whether to plead guilty, or
that he would have pleaded not guilty had he received a more
pessimistic (and accurate) estimate from counsel.
Blanco says that his lawyer also rendered ineffective
assistance by failing to prepare adequately for a trial.
According to Blanco, the lawyer neither conducted a pretrial
investigation nor filed all the "required" pretrial motions.
A claim of ineffective preparation requires the Section 2255
petitioner to make "specific allegations concerning 'the
facts or defenses which counsel would have uncovered' had he
been prepared." United States v. Johnson, 624 F.Supp. 1191,
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1194 (E.D.Pa. 1986) (quoting United States v. Thomas, 470
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F.Supp. 968, 972 (E.D.Pa. 1979)). Blanco says only that his
lawyer's inaction "precluded the mounting of an effective
entrapment defense." This allegation, however, is undone by
(1) Blanco's failure to state any facts which would show that
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the lawyer could have come up with an entrapment defense had
he worked harder, and (2) the lawyer's statement, made
without contradiction in Blanco's presence at the sentencing
hearing, that "[a]fter reviewing the evidence, after speaking
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with Mr. Blanco at great length . . . we realized that [an
entrapment defense] was to no avail."
Finally, Blanco claims that the district court violated
Fed. R. Crim. P. 32 when it sentenced him. Rule 32(a)(1)(A)
requires the trial court to "determine that the defendant and
defendant's counsel have had the opportunity to read and
discuss the presentence investigation report" before the
court imposes sentence. Blanco says that the district court
did not satisfy this requirement because it never asked him
(1) whether he had read the report, (2) whether he had
discussed it with his lawyer, and (3) whether he wanted to
challenge any facts in it. See United States v. Rone, 743
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F.2d 1169, 1174 (7th Cir. 1984) (requiring sentencing court
to ask those three questions).
Unlike the Seventh Circuit, this court has never
demanded that the district court comply with Rule 32(a)(1)(A)
by asking such specific questions. Rather, "binding
precedent in this circuit has directed that if it is
abundantly clear from the sentencing hearing that both
defendant and his counsel are familiar with the report, a new
sentencing hearing will not be mandated, even if the court
failed to directly inquire whether the defendant had an
opportunity to review the report. . . ." United States v.
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Manrique, 959 F.2d 1155, 1157-58 (1st Cir. 1992). See also
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United States v. Serino, 835 F.2d 924, 931 (1st Cir. 1987).
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According to the transcript of the sentencing hearing in
this case, the district court certainly had "abundant" reason
to determine that Blanco's lawyer had received and read the
presentence investigation report. The lawyer stated his
objections to the report so specifically as to leave no doubt
of his familiarity with its contents.
Although the discussion at the sentencing hearing did
not reveal to the district court whether Blanco had seen the
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presentence report, we know that he did: his Section 2255
motion tells us that "[p]rior to sentencing the Petitioner
and his counsel reviewed the Pre-sentence Investigation
Report prepared by the United States Probation Office." In
similar circumstances, this court recently found no violation
of Rule 32(a)(1)(A), reasoning that "[a]s the record well
establishes that defense counsel was intimately familiar with
the [presentence report], we will not assume that defense
counsel did not discuss so critically important a document
with his client, especially since appellant claims no
dereliction." United States v. Cruz, 981 F.2d 613, 619-20
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(1st Cir. 1992).
Even if the district court did violate Rule 32(a)(1)(A),
its lapse is not corrigible in this collateral proceeding.
The Supreme Court has held that a trial court's failure "to
ask a defendant represented by an attorney whether he has
anything to say before sentence is imposed is not of itself
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an error of the character or magnitude cognizable under a
writ of habeas corpus." Hill v. United States, 368 U.S. 424,
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428 (1962). See also Padilla Palacios v. United States, 932
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F.2d 31, 36 n.8 (1st Cir. 1991). The Supreme Court in Hill
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v. United States was referring to the trial court's general
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duty, under Rule 32(a)(1)(C), to give a pleading defendant a
chance to speak before sentencing, but we think that the
principle also suits the court's more specific obligation
under Rule 32(a)(1)(A). The failure to ask a defendant
whether he has had the opportunity to read and discuss the
presentence investigation report, like the failure to hear a
defendant's statement in mitigation of his sentence, is an
error which in itself "is neither jurisdictional nor
constitutional. It is not a fundamental defect which
inherently results in a complete miscarriage of justice, nor
an omission inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S. at 428.
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The Supreme Court in Hill left open the possibility that
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Section 2255 relief might "be available if a violation of
Rule 32(a) occurred in the context of other aggravating
circumstances." Id. The underlying concern is "that matters
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in mitigation of sentence should be fairly presented to a
sentencing judge prior to rendition of final sentence." Katz
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v. King, 627 F.2d 568, 576 (1st Cir. 1980). Thus, in Green
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v. United States, 313 F.2d 6, 9-10 (1st Cir. 1963), this
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court vacated the denial of a Section 2255 motion where the
petitioner claimed that he had been denied his right to
address the court before sentencing, and that as a result the
court did not learn "of several matters unknown to
[petitioner's] counsel which would have corrected false
impressions implanted in the mind of the court by remarks of
the assistant district attorney."
Blanco cannot build upon this rock. He tells us that,
when he reviewed the presentence report with his lawyer, he
registered objections to the amount of cocaine reportedly
involved, and to the decision not to give him a two-level
Sentencing Guidelines adjustment for acceptance of
responsibility.2 The lawyer presented these objections to
the district court (and later, on direct appeal, to this
court). Since the "matters in mitigation" were presented to
the district court before it passed sentence, we find no
"aggravating circumstances" that might warrant Section 2255
relief.
Affirmed.
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2. Blanco also says that he objected to the manner in which
the presentence report "inaccurately portrayed his
involvement in the offense activity." However, he never
described how the report was inaccurate, nor stated the
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factual objections he might have presented to the district
court had he been given the opportunity.
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