USCA1 Opinion
November 20, 1992
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1508
ROYAL W. HADFIELD, JR.,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Royal W. Hadfield, Jr. on Memorandum.
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A. John Pappalardo, United States Attorney, and Dina Michael
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Chaitowitz, Assistant United States Attorney, on brief for appellee.
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Per Curiam. Royal W. Hadfield, Jr. was convicted
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of possessing with intent to distribute 100 or more marijuana
plants, using his property to facilitate a drug trafficking
crime, using and carrying firearms in relation to a drug
trafficking crime and being a prohibited person in possession
of firearms. He was sentenced to fifteen years in prison on
the controlled substance charge, and to a consecutive five-
year prison term for each of the firearms-related charges.
We affirmed his conviction in United States v. Hadfield, 918
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F.2d 987 (1st Cir. 1990), cert. denied, 111 S. Ct. 2062
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(1991). Hadfield then brought a motion to vacate his
sentence under 28 U.S.C. 2255, which the district court
denied. Hadfield now appeals the denial of his motion.
Finding no error in the district court's decision, we affirm.
DISCUSSION
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On appeal Hadfield raises a host of issues.1 He
claims that he did not receive effective assistance of
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1. Because Hadfield does not reargue certain points on
appeal, the government asserts that Hadfield has waived those
points, although it also notes that Hadfield requested the
court to review his motion and briefs below "for a precise
statement of his claims and arguments." In his Notice of
Appeal, Hadfield stated that he is appealing the "whole of
the [district court's] memo and order." His statement of the
issues on appeal also essentially restates the arguments
raised in his original motion and brief (with the exception
of his arguments relating to exclusive possession of
controlled substances, downward departure, and plea
bargaining). Because Hadfield has clearly stated his intent
to appeal all issues and because we often permit pro se
petitioners to rely on their underlying section 2255 motion
and briefs on appeal, we find that Hadfield has not waived
any arguments originally presented to the district court by
not rearguing them before this court.
counsel before and during the trial. He alleges various
constitutional infirmities in the controlled substance
statute under which he was convicted and in the Sentencing
Guidelines. He also claims that the district court should
have given him a downward departure based on the weight of
the marijuana he was found to have possessed, and that the
court should have held an evidentiary hearing to determine
certain issues. We consider these claims of error in turn.2
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2. The government suggests that several claims of error now
made by Hadfield were not raised below. We find that the
argument that 21 U.S.C. 841(b)(1)(C) is arbitrary because
it contemplates using an everyday definition of the word
"plant" is not a new issue on appeal. In his original brief
Hadfield stated that the "scientific" definition of "plant"
should be used "as opposed to the dictionary definition." In
addition, much of Hadfield's appellate argument on this point
responds to the government's argument below. Nevertheless,
we do not further consider Hadfield's argument here. As the
government states, using the common understanding of the word
"plant" as reflected in its dictionary definitions is
appropriate. See Chapman v. United States, 111 S. Ct. 1919,
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1925 (1991) (because the terms "mixture" and "substance" as
used in 21 U.S.C. 841 were not defined by Congress or the
Sentencing Guidelines, the terms were to be given their
"ordinary meaning"; to determine that meaning, the Court
consulted dictionaries).
We also find that Hadfield raised the argument below
that section 841(b)(1)(C) permits prosecutors at whim to seek
radically different sentences for the same offense. But we
do not find the argument to have any merit, for the reasons
given in the government's appellate brief. See, e.g., United
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States v. Corley, 909 F.2d 359, 361 (9th Cir. 1990) (when an
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offender possesses live marijuana plants, the number of
plants will be used to determine the base offense level, but
when the marijuana has been dried, its weight is used).
Moreover, Hadfield's argument seems to be based on the
erroneous premise that a prosecutor can use the drug
equivalency tables in the Sentencing Guidelines to convert an
offender's possession of dried marijuana into possession of
marijuana plants and vice versa in charging an offender under
21 U.S.C. 841.
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I. Ineffective Assistance of Counsel
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Hadfield, who was tried jointly with his wife,
claims that his counsel should have moved to sever his wife's
trial from his because his wife's defense was "wholly
inconsistent" with his claim of innocence. As the court
found, however, the evidence at trial that Hadfield possessed
marijuana with intent to distribute was compelling.
(Hadfield also admitted to possessing marijuana in an
affidavit submitted to the district court in connection with
his section 2255 motion.) In light of the evidence, any
suggestion in his wife's presentation of her defense which
could have incriminated him would have been merely
cumulative. Furthermore, Hadfield has pointed to no record
evidence demonstrating that his wife was willing to exculpate
him, nor has he stated what precisely she would have
testified to had their trials been severed. Therefore,
trying Hadfield and his wife jointly does not appear to have
prejudiced Hadfield, and the district court would have had no
basis for granting any motion to sever that Hadfield's
counsel might have brought. See United States v. Perkins,
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926 F.2d 1271, 1280, 1281 (1st Cir. 1991) (there is a strong
public policy favoring joint trials where the same drug
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Finally, we agree with the government that, by not
presenting it to the district court, Hadfield waived his
claim that his attorney rendered ineffective assistance of
counsel by conceding in the presentence investigation report
that Hadfield possessed more than 100 marijuana plants.
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violation is alleged; the court did not abuse its discretion
in denying a motion to sever where a husband did not state he
was willing to exculpate his wife or describe with
particularity what his testimony would be); Fed. R. Crim. P.
Rule 14 (the court may grant a severance if the defendant
would be prejudiced by a joinder of defendants). Since
severance was not warranted, the failure of Hadfield's
counsel to bring a motion to sever the Hadfields' trial did
not amount to ineffective assistance of counsel.
Hadfield also claims that his counsel's failure to
renew a motion for acquittal at the end of his presentation
of the defense evidence was ineffective assistance of
counsel. Hadfield claims that this failure prejudiced him
because it caused this court to use a more stringent standard
of review in determining, on direct appeal, whether the
evidence was sufficient to convict him under 18 U.S.C.
924(c)(1) of using firearms "during and in relation to" his
drug trafficking offenses. It is true that we applied a
standard of review more generous to the government because
Hadfield's counsel failed to renew his motion for acquittal.
But we also stated that the evidence amply supported
Hadfield's conviction. See United States v. Hadfield, supra,
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918 F.2d at 998 ("Based on [the] evidence, the jurors were
well within the pale in [convicting Hadfield of the firearms
charge]. It was no injustice at all -- much less a clear and
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gross injustice -- for Hadfield to be convicted of violating
18 U.S.C. 924(c)(1)"). Thus, we would have affirmed
Hadfield's conviction, even under the more lenient standard
of review. Moreover, since the evidence was more than
sufficient to convict Hadfield of the firearms charge, the
court would have denied any motion for acquittal. Cf. Fed.
___
R. Crim. P. Rule 29(a) (acquittal should be ordered "if the
evidence is insufficient to sustain a conviction").
Consequently, the failure to bring that motion could not have
prejudiced Hadfield, and does not support a claim that he
received ineffective assistance of counsel.
Next, Hadfield asserts that his counsel's failure
to request a jury instruction defining "marijuana plant" and
an instruction that only exclusive possession of a controlled
substance would support his conviction constituted
ineffective assistance of counsel. Clearly, the district
court did not err in concluding that no ineffective
assistance of counsel resulted from failing to give the
latter instruction. Case law makes clear that an offender
may be convicted for joint possession of a controlled
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substance. See, e.g., United States v. Vargas, 945 F.2d 426,
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428 (1st Cir. 1991) (citing cases). A defendant is not
entitled to a jury instruction on an invalid defense theory.
United States v. McGill, 953 F.2d 10, 12 (1st Cir. 1992).
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Thus, counsel's failure to seek an instruction that Hadfield
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could be convicted only if his possession of the marijuana
had been exclusive did not prejudice Hadfield.
Nor did counsel's failure to seek an instruction
defining "plant" prejudice Hadfield. As the district court
pointed out, Hadfield might have been entitled to that
instruction had he requested it. But the failure to request
it did not prejudice him because the evidence that Hadfield
possessed well over 100 plants was "overwhelming" and
included a videotape showing rooms full of living, growing
plants. In addition, permitting the jury to use its common
understanding of what a plant is to determine whether
Hadfield possessed more than 100 marijuana plants was not
erroneous. Cf. United States v. Eves, 932 F.2d 856, 860
___ _____________ ____
(10th Cir.) (there was no evidence that Congress intended the
term marijuana "plant" to be construed "other than by its
plain and ordinary dictionary meaning"), cert. denied, 112 S.
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Ct. 236 (1991).3
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3. Although Hadfield alleges that the "scientific"
definition of "plant" should control, at trial his own
botanical expert defined a plant to include seeds. Evidence
submitted at trial showed that law enforcement officials
found a number of bottles or vials of marijuana seeds on
Hadfield's property. Although the seeds were not counted,
applying the definition used by Hadfield's own expert
obviously would have increased, and not reduced, the number
of marijuana plants that the jury counted. Thus, it seems to
us that Hadfield's attorney rendered effective assistance of
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counsel by not seeking an instruction defining the term
"plant" as a botanist would.
-7-
Finally, Hadfield claims that his counsel's failure
to advise him before trial that he might receive a sentence
enhancement for being a career offender prejudiced him. He
states that he believed that his maximum sentence would be
five years and that he might have sought to plea bargain with
the government if had he known that he might receive a
sentence of twenty years. Regardless whether Hadfield was
entitled to pre-trial notice that the career offender
provisions were applicable, or whether a plea bargain was
even possible, Hadfield's argument founders on factual
inaccuracy. During his pre-arraignment detention hearing,
the government's attorney first reviewed Hadfield's criminal
record and the potential sentences he would receive if
convicted as charged. She then stated that the first count
of the indictment "charges him with, specifically with an
enhanced penalty provision, one hundred or more marijuana
plants. And on that count, statutorily he is facing at least
a maximum of twenty years imprisonment." Thus, before trial
Hadfield knew that the issue of his prior convictions was
important, even if no specific reference to the career
offender guidelines was made. He also knew that he might
receive up to twenty years in prison if convicted of the
marijuana offense. His failure to seek a plea bargain,
therefore, cannot be attributed to ignorance respecting the
lengthy prison sentence awaiting him. Therefore, his
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counsel's failure to inform him of the correct potential
sentence could not have prejudiced him as he alleges.4
II. Constitutional Challenges to 21 U.S.C. 841
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Hadfield claims that his conviction under 21 U.S.C.
841(a)(1) and (b)(1)(C) violated his due process and equal
protection rights. He alleges that the statute is arbitrary
as applied to him because the marijuana he possessed could
have been weighed, but was not, and because he was convicted
for possessing a certain number of plants even though not all
of those plants would survive to maturity or produce
marketable marijuana. He also claims that the statute
provides for disparate sentences for controlled substance
offenders. If he had possessed less than 50 kilograms of
marijuana, he would have been sentenced to a maximum sentence
of five years under section 841(b)(1)(D). But, because he
possessed plants, he was subject to a twenty-year maximum
sentence under section 841(b)(1)(C), even though the number
of plants he possessed would amount to less than 50 kilograms
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4. In any event, as both the court and the government have
emphasized, the evidence that Hadfield had possessed
marijuana was overwhelming, and, given his criminal record
(which he did not contest), the guidelines provided for
mandatory enhancement of his sentence. Thus, no plea bargain
was possible that would have relieved Hadfield of the
sentencing consequences of his criminal record. For that
reason, and because criminal offenders have no "right" to
plea bargain with the government, see Weatherford v. Bursey,
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429 U.S. 545, 561 (1977), we reject Hadfield's general claim
that the failure to plea bargain with him denied him equal
protection of the law.
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of marijuana under the drug equivalency tables in the
Sentencing Guidelines.
Case law makes clear that Hadfield's equal
protection and due process claims are without merit. The
provision of the statute under which Hadfield was convicted
stated essentially that the maximum sentence for knowingly
possessing with intent to distribute, "100 or more marihuana
plants, regardless of weight," would be twenty years. See 21
___
U.S.C. 841(a)(1), (b)(1)(C) & (D). That language has been
found to have been intended to punish marijuana growers more
harshly than mere possessors of marijuana, and the greater
punishment of marijuana growers has been sustained as a
rational, hence constitutionally permissible, legislative
goal. See, e.g., United States v. Osburn, 955 F.2d 1500,
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1507-09 (11th Cir.) (rejecting the same arguments as those
presented here, the court found that section 841 did not
violate due process because Congress had rationally based its
sentencing scheme on the number of plants rather than on
their weight in an attempt to "halt the problem earlier in
the cycle, making it less likely that the drug would ever be
distributed to the public"), cert. denied, 61 U.S.L.W. 3261 &
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3264 (1992); United States v. Lee, 957 F.2d 778, 784 (10th
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Cir. 1992) (rejecting the same arguments as those presented
here, the court upheld section 841 on equal protection
grounds because the statute reflects Congress's rational
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intent to punish marijuana growers "by the scale or potential
of their operation and not just the weight of the plants
seized at a given moment"; "the cultivation of marijuana
plants creates a greater potential for abuse than possession
of harvested marijuana" since there "would be no dried
marijuana unless there were marijuana plants").5
Moreover, Hadfield's use of the drug equivalency
tables in the Sentencing Guidelines to illustrate the
disparity in treatment of offenders under section 841 is a
red herring. First, he assumes that the equivalency tables
may be used to convert numbers of plants into weights for
purposes of conviction for controlled substance offenses
under section 841. However, the equivalency tables were
devised for a completely different purpose. See U.S.S.G.
___
Manual (1988), 2D1.1, commentary, note 10 (the drug
equivalency tables provide help in applying the Drug Quantity
Table, which sets the base offense level for certain
offenses, by equating substances not specifically named in
the statute to those named in the statute, and in determining
a single offense level for offenders convicted of possessing
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5. The only cases Hadfield cited to support his specific
claim that section 841(b)(1)(C) violated his due process and
equal protection rights were the district court decisions in
the Osburn and Lee cases. See United States v. Osburn, 756
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F. Supp. 571 (N.D. Ga. 1991); United States v. Lee, 762 F.
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Supp. 306 (D. Kan. 1991). Both of those cases were vacated
on appeal in the decisions cited above in this opinion.
Thus, Hadfield's claim is without support in precedent.
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differing controlled substances by converting the different
drugs to quantities of only one type of drug). Second, in
actuality Hadfield is attempting to argue that marijuana
growers and possessors of marijuana are, or should be
regarded as, similarly situated offenders. But, as the
Osburn and Lee cases make clear, marijuana growers and mere
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possessors of marijuana are not similarly situated offenders
___
under the statute. Consequently, their disparate treatment
under the statute does not amount to a violation of equal
protection.
Hadfield further argues that the statute is void for
vagueness as applied to him because the term "plant" is not
defined. The district court found that the alleged ambiguity
did not have "constitutional dimensions" because the term
"plant" is used only in the penalty provisions of section 841
and because there was "no doubt that the statute explicitly
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forbids possession of marijuana with intent to distribute."
Without doubt, Hadfield knew that growing marijuana was
illegal. As the government pointed out, the covert nature of
Hadfield's marijuana cultivation showed that he was well
aware that his activity was illegal. Moreover, without
deciding whether vagueness in the sentencing provisions of a
statute has constitutional implications, we note that in his
response to the presentence investigation report Hadfield's
counsel conceded that Hadfield possessed between 100-199
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marijuana plants. Thus, there was also no ambiguity as to
whether Hadfield's conduct came within the penalty provisions
of section 841(b) for purposes of sentencing him. Therefore,
Hadfield's allegation that the statute was void for vagueness
as applied to him is meritless. See United States v. Speltz,
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733 F. Supp. 1311, 1312 (D. Minn. 1990) (the court denied
that the term 'marijuana plants' could be "susceptible to so
many interpretations that a person of ordinary intelligence
could not know what conduct is prohibited," and also found
that the defendant "clearly knew that growing the marijuana
plants in his basement was prohibited conduct." ), aff'd, 938
_____
F.2d 188 (8th Cir. 1991).
Finally, Hadfield contends that there is "extreme
disproportionality between the sentence imposed under the
Sentencing Guidelines and the statutory maximum for a case
involving fifty kilos or less of marihuana." This statement
does not explain precisely which sentences Hadfield is
contrasting. The government interprets Hadfield's argument
to challenge the career offender provisions of the Sentencing
Guidelines since it was the application of those provisions
that actually increased Hadfield's potential sentence to the
statutory maximum. The court appears to have interpreted the
contention as a challenge to sentencing under section 841
alone. Under either analysis, Hadfield's argument fails.
The circuit courts of appeals have sustained the career
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offender guidelines against challenges under the Eighth
Amendment. See, e.g., United States v. John, 936 F.2d 764,
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766 n.2 (3d Cir. 1991); United States v. Foote, 920 F.2d
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1395, 1401-02 (8th Cir. 1990), cert. denied, 111 S. Ct. 2246
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(1991); United States v. Newsome, 898 F.2d 119, 122 (10th
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Cir.), cert. denied, 111 S. Ct. 207 (1990). And Supreme
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Court precedent shows that Hadfield's fifteen-year sentence
under section 841, which is five years lower than the
statutory maximum, is valid under the Eighth Amendment. In
Hutto v. Davis, 454 U.S. 370 (1982) (per curiam), the Supreme
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Court reaffirmed the principle that federal courts should
only reluctantly review statutorily prescribed sentences
under the Eighth Amendment and that overturning such
sentences should be "exceedingly rare" occurrences. Id. at
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370 (citation omitted). Given the Court's determination in
Hutto that a sentence of forty years in prison for possessing
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with intent to distribute nine ounces of marijuana was
constitutional, we are sure that Hadfield's sentence of
fifteen years for possessing well over 100 marijuana plants
with intent to distribute is constitutional as well.
III. Constitutional Challenge to Sentencing Guidelines
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Hadfield claims that the career offender provisions in
section 4B1.1 of the Sentencing Guidelines are
unconstitutional and violate 21 U.S.C. 851 because they do
not require that an offender be notified before trial that
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those provisions will be used in determining the offender's
sentence.6 Section 851(a)(1) states that no person
convicted of an offense under section 841 "shall be sentenced
to increased punishment by reason of one or more prior
convictions, unless before trial, . . . the United States
attorney files an information . . . stating in writing the
previous convictions to be relied upon." Hadfield
erroneously reads this language to require the government to
give pre-trial notice to repeat offenders in all cases in
which the career offender guidelines are applied. However,
the words "increased punishment" in section 851 do not refer
to enhancements of base offense level under the Guidelines,
but instead to the imposition of a sentence in excess of the
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statutory maximum. See United States v. Sanchez, 917 F.2d
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607, 616 (1st Cir. 1990), cert. denied, 111 S. Ct. 1625
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(1991). Because the government did not file the information
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6. Hadfield also alleges that the drug equivalency tables in
section 2D1.1 of the Guidelines are unconstitutional because
they arbitrarily equate one marijuana plant with 100 grams of
dried marijuana. The district court correctly declined to
consider his argument because the equivalency tables did not
affect Hadfield's sentence. Although the drug quantity table
in section 2D1.1 would have given Hadfield a base offense
level of 18 for having possessed 20-39 kilograms of marijuana
or 200-399 marijuana plants, ultimately that computation was
not used because the offense level given in section 4B1.1 of
the Guidelines was greater. See U.S.S.G. Manual (1988),
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4B1.1 ("If the offense level for a career criminal [subject
to a maximum sentence of twenty years] is greater than the
offense level otherwise applicable, [the higher] offense
level shall apply."). The offense level and criminal history
category given in section 4B1.1 determined Hadfield's
sentence guideline range.
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15
in Hadfield's case, it sought only the maximum sentence under
section 841 for Hadfield's offense, i.e. twenty years in
prison, rather than the thirty years that otherwise would
have been permissible for repeat offenders. Thus, even
though Hadfield's base offense level under the Sentencing
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Guidelines increased (relative to what it would have been for
the marijuana conviction by itself) by virtue of his prior
convictions, the convictions were not used to justify a
sentence of greater than twenty years, the statutory maximum.
Furthermore, the sentence arrived at under the career
offender guidelines was within the statutory maximum. Thus,
neither section 851 nor the Constitution was violated by the
government's failure to give Hadfield pre-trial notice of its
intent to use those convictions for sentencing purposes. See
___
id.
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Nor are the career offender provisions of the Guidelines
constitutionally defective because they do not require pre-
trial notice that the provisions will be used in sentencing.
Cf. United States v. Craveiro, 907 F.2d 260, 264 (1st Cir.)
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(the failure of the Armed Career Criminal Act to require pre-
trial notice that an offender's sentence could be enhanced
because of prior convictions did not violate defendant's due
process or equal protection rights), cert. denied, 111 S. Ct.
____________
588 (1990). Hadfield's presentence investigation report
advised him well before sentencing that his prior convictions
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16
would result in an increased base offense level under section
4B1.1 of the Guidelines, and the report described those
convictions. Accordingly, Hadfield was afforded ample
opportunity to challenge the use of those convictions, which,
as the district court observed, satisfied the requirements of
due process.
IV. Remaining Claims
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Although the district court departed downward because
of Hadfield's military service and the forfeiture of his
property, Hadfield faults the district court for not
departing further downward on the basis of the "true weight"
of the marijuana he possessed. We have no jurisdiction to
consider that claim, and thus decline to do so. See United
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States v. Pomerleau, 923 F.2d 5, 6 (1st Cir. 1991) ("The law
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in this circuit is crystal clear . . . that a sentencing
court's decision not to depart from the guidelines is
___
unappealable. . . . By the same token, . . . we have no
jurisdiction to review the extent of a downward departure
______
merely because the affected defendant is dissatisfied with
the quantification of the district court's generosity.")
(citations omitted; emphases in original).7 Although the
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7. We note that it is not clear whether the court actually
declined to depart downward for the reason now proffered by
Hadfield in its original sentencing decision. In his
response to the presentence investigation report, Hadfield's
attorney adopted the probation officer's suggestion that a
downward departure might be warranted on the basis of the
alleged sentencing disparities for offenders possessing
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17
question of our power to review downward departures generally
arises on direct appeal, we see no reason why the answer to
that question should be any different in response to a
section 2255 motion.
Finally, Hadfield contends that the court erred in not
granting him an evidentiary hearing to determine the actual
number of marijuana plants he possessed, the effectiveness of
his counsel and the adequacy of the notice to him that the
career offender provisions of the Guidelines would be used to
sentence him. Those issues involved either legal questions
or factual issues that could be resolved on the basis of the
record. Accordingly, no material fact remained for the court
to determine, and no evidentiary hearing was necessary. See
___
28 U.S.C. 2255; United States v. DiCarlo, 575 F.2d 952, 954
_____________ _______
(1st Cir.), cert. denied, 439 U.S. 834 (1978).
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CONCLUSION
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The decision of the district court is affirmed.
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equivalent weights of dried and plant marijuana. But he
failed to argue that point at the sentencing hearing, and the
court did not decide the issue, although the government
suggests, without record citation, that it did. In any
event, the court stated, in its decision on Hadfield's
section 2255 motion, that Hadfield's claim for downward
departure had no merit since it was not authorized by the
Sentencing Guidelines.
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