Bonavita v. United States
Opinion
USCA1 Opinion
March 30, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________
No. 94-1847
CHRISTOPHER BONAVITA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
____________________
Christopher Bonavita on brief pro se. ____________________
Donald K. Stern, United States Attorney, and C. Jeffrey Kinder, ________________ _________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________
Per Curiam. Christopher Bonavita appeals pro se from __________ ___ __
the district court's dismissal of his motion to vacate,
modify or correct his sentence pursuant to 28 U.S.C. 2255.
Bonavita also appeals from the district court's order dated
August 1, 1994, denying his motion for leave to respond to
the government's opposition. He requests that the case be
remanded for an evidentiary hearing on the issue of
"sentencing factor manipulation."
I. Background _ __________
Bonavita pleaded guilty to two counts of an indictment
charging him with conspiracy to distribute cocaine in
violation of 21 U.S.C. 846 (count two) and attempt to
possess with intent to distribute 500 grams or more of
cocaine in violation of 21 U.S.C. 841(b)(1)(B) and 18
U.S.C. 2 (count four). Count two, although a pre-
guidelines offense, was included as "relevant conduct" in
arriving at a base offense level. See U.S.S.G. 1B1.3. The ___
pre-sentence report calculated a guideline imprisonment range
of 41 to 51 months. The statutory mandatory minimum sentence
for count four, however, was sixty months. See 28 U.S.C. ___
841(b)(1)(B). Accordingly, in October, 1992, the court
sentenced Bonavita to sixty months' imprisonment. The court
failed to specify the sentence imposed on count two.
Bonavita did not appeal. He filed this 2255 motion in
May, 1994. The motion sought relief on the ground of
ineffective assistance of counsel. He faulted his attorney
for failing to raise the following arguments at sentencing or
on appeal: 1) that "sentencing factor manipulation" entitled
Bonavita to a departure from the guideline sentence; 2) that
the court erroneously believed it lacked discretion to impose
a sentence below the mandatory minimum sentence prescribed by
statute; and 3) that the district court erred in failing to
specify the sentence imposed for Count Two. Bonavita's motion
focused primarily on the sentencing manipulation argument,
suggesting that the government may have proposed the
"outrageously low price of $6,500" for a kilogram of cocaine
for the purpose of inducing Bonavita to deal in a larger
quantity of cocaine than was his custom, thereby triggering
the statutorily prescribed ten-year mandatory minimum
sentence.
On May 17, 1994, the district court ordered the
government to respond to Bonavita's 2255 motion. The
government filed an opposition on July 14, 1994. In response
to the sentencing manipulation argument, the government
attached to its opposition a declaration under oath by
Special Agent Sean McDonough of the Drug Enforcement
Administration ("the McDonough affidavit"), the undercover
agent who made the attempted sale to Bonavita. The McDonough
affidavit stated that Bonavita and co-defendant Michelle
Malloy had agreed to purchase the kilogram of cocaine for
-3-
$17,000, with a $10,000 downpayment to be followed by
delivery of the balance after distribution of the cocaine.
McDonough also stated in the affidavit that Malloy later met
with him to explain that she and Bonavita could only come up
with a $6,500 down payment.
In a memorandum and order dated July 19, 1994, the
district court denied Bonavita's 2255 motion. Bonavita, in
response to the government's opposition and affidavit, filed
a motion requesting an opportunity to respond or for a
hearing. That motion, dated July 20, 1994, was denied on
August 1, 1994, on the ground that the district court had
already denied the 2255 motion.
II. Discussion __ __________
"To succeed in setting aside a conviction premised on
ineffective assistance of counsel, a petitioner must
establish both constitutionally deficient performance on his
attorney's part and concomitant prejudice, or, phrased
another way, that the quality of legal representation at his
trial was so inferior as to be objectively unreasonable, and
that this incompetent lawyering redounded to his substantial
detriment." United States v. McGill, 11 F.3d 223, 226 (1st ______________ ______
Cir. 1993)
Free access — add to your briefcase to read the full text and ask questions with AI
Bonavita v. United States, (1st Cir. 1995).
Bonavita v. United States (Bonavita v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.
Related
Gozlon-Peretz v. United States
498 U.S. 395 (Supreme Court, 1991)
United States v. McGill
11 F.3d 223 (First Circuit, 1993)
United States v. Gibbens
25 F.3d 28 (First Circuit, 1994)
United States v. Giovanni Castiello
915 F.2d 1 (First Circuit, 1990)
United States v. Gerald Connell
960 F.2d 191 (First Circuit, 1992)
United States v. Zulma Jorge Torres
33 F.3d 130 (First Circuit, 1994)