Lopez Del Rio v. United States

Opinion

USCA1 Opinion

November 17, 1993
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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No. 93-1397 

                               ANA MARIA LOPEZ DEL RIO,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
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                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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            Ana Maria Lopez Del Rio on brief pro se.
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            Jay  P.  McCloskey,  United  States  Attorney,  F.  Mark  Terison,
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        Assistant United States Attorney, and Margaret D. McGaughey, Assistant
                                              _____________________
        United States Attorney, on brief for appellee.

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Per  Curiam.  Ana  Maria Lopez Del  Rio appeals the
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            dismissal of her  second pro se motion to  vacate, set aside,
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            or correct her sentence under  28 U.S.C.   2255.  The  motion

            was denied as an abuse of the writ.  We affirm.

                                          I.
                                          _

                      Del Rio pleaded guilty  to possessing, distributing

            and conspiring to possess and distribute cocaine in violation

            of 21 U.S.C.    841 and  846 and was sentenced to 132  months

            imprisonment.  Her  appeal of that  sentence raised only  one

            ground for review:  that the district court incorrectly found

            her  to  be   a  "leader"  under  U.S.S.G.      3B1.1(a)  and

            erroneously enhanced  her  offense  level  accordingly.    We

            affirmed the sentence,  United States v. Ana  Maria Lopez Del
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            Rio, No. 91-1442 (1st Cir.  Nov. 14, 1991), and Del Rio  then
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            filed  her first   2255  motion.  It  alleged two grounds for

            relief.  First, she argued that the district court misapplied

            U.S.S.G.    1B1.3(a)(2) in  deciding that  the  scope of  the

            conspiracy included the drug transactions and quantities  set

            out in the presentence report as well as the testimony at the

            trial  of Del Rio's  co-conspirator and brother,  Andre Lopez

            Polanco.     Second,  Del   Rio  contended  that   there  was

            insufficient evidence to support a  conclusion that she was a

            leader  under  U.S.S.G.     3B1.1(a).    The  district  court

            summarily denied the motion and no appeal was taken.

In this, her second motion to vacate sentence under

               2255, Del Rio asserts one ground  for relief:  Whether the

            district court erred by adopting the presentence report based

            on the relevant conduct section of the sentencing guidelines.

            In a supporting memorandum, Del Rio argued that  the November

            1, 1992 amendments  to   1B1.3 clarified the relevant conduct

            guideline,   and  that,   accordingly,  the   district  court

            improperly  based  her  sentence  on  drug  transactions  and

            quantities that she could not reasonably have foreseen within

            the conspiracy.

                      The  government's  response claiming,  inter  alia,
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            abuse of  the writ under  the teaching of McCleskey  v. Zant,
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            111 S. Ct.  1454, 1468 (1991), outlined Del  Rio's prior writ

            history and argued that the single issue raised in the second

            motion, to the extent that it differed from ground one in the

            first    2255  motion,  could  not be  raised  now without  a

            showing  of "cause"  for having  failed to raise  the present

            claim  earlier.   Id.   The  government contended  that cause
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            could not  be shown  because the  current "relevant  conduct"

            claim was  simply a  restatement of the  claim raised  in the

            first motion disputing the amount of cocaine involved in  the

            conspiracy.  The  district court summarily denied  the motion

            as an abuse of the  writ.  Del Rio's subsequently-filed reply

            to the government's response did not address the abuse of the

            writ charge.  This appeal ensued.

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II.
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                      Del  Rio's second  motion  to vacate  sentence  was

            properly dismissed under Rule 9 of the Rules Governing   2255

            proceedings.  Rule  9(b), consistent with  the language of   

            2255   ("The  sentencing  court  shall  not  be  required  to

            entertain a second or successive motion for similar relief on

            behalf  of the same  prisoner."), provides that  successive  

            2255 motions may  be dismissed "for abuse of  the procedure."

            While Rule 9(b)  does not define "abuse", under  the abuse of

            the writ  doctrine, see  McCleskey,  111 S.  Ct. at  1467-71,
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            petitioners invoking either 28 U.S.C.    2254 or 2255 will be

            excused from  failing  to  raise  an issue  earlier  only  by

            showing   "cause  for  failing  to  raise  it  and  prejudice

            therefrom" or that a fundamental miscarriage of justice would

            otherwise result.  McCleskey,  111 S. Ct. at 1470;  Andiarena
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            v. United States,  967 F.2d 715, 717 (1st  Cir. 1992); United
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            States v. Flores, 981 F.2d 231, 234 (5th Cir. 1993).
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                      Here, the  government adequately  pleaded abuse  of

            the writ in response to  Del Rio's second motion.  Andiarena,
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            967 F.2d at 716.  Since Del Rio's first   2255 motion was not

            decided on  the merits, she  must disprove  abuse by  showing

            that   "some   external   impediment,   such  as   government

            interference or the reasonable unavailability of the  factual

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or legal  basis for a  claim, prevented it from  being raised

            earlier."   Id. at 718.   Del Rio has  failed to make  such a
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            showing.  The only new assertion in support of her claim that

            the  court held  her  accountable for  conduct  that was  not

            "reasonably  foreseeable" by her --- that Guideline Amendment

            439  "clarified" the relevant conduct guideline,   1B1.3, and

            reduced  her sentencing range  exposure --- is  unavailing to

            show  "cause."   The  amendment, which  came  into effect  on

            November  1, 1992, eighteen  months after sentencing,  is not

            retroactive  in operation.  U.S.S.G.   1B1.10.  Thus, whether

            or  not the  amendment has  the  effect Del  Rio contends,  a

            question we need not decide,  it is not a "retroactive change

            in  the law . . . represent[ing  an] acceptable excuse[ ] for

            failing to raise  the claim earlier."  McCleskey,  111 S. Ct.
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            at 1467.  Thus, Del Rio not only has failed to show cause for

            her  previous  failure  to  raise the  issue,  she  has shown

            neither  prejudice nor  a miscarriage  of  justice since  the

            amendment  on which  her  claim  depends  was,  and  remains,

            inapplicable.    

                      Because  of the "threshold  nature of the  abuse of

            the writ  inquiry," id.  at 1471, we  also need  not consider
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            whether  the  claim  at  issue  here  had  been  procedurally

            defaulted  at  some   earlier  stage  of  the   proceedings.1

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            1.  Although Del  Rio was  then represented  by counsel,  she
            failed  to  raise  a  relevant  conduct sentencing  guideline
            challenge on  direct appeal.   Generally, waiver of a    2255

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Obviously, if a successive motion  under   2255 was found not

            an abuse of procedure,  Rule 9(b), 28 U.S.C. foll.   2255, it

            would  then be  necessary to  consider  whether the  petition

            suffers from other procedural defects.  McCleskey, 111 S. Ct.
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            at 1466.

                                         III.
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                      In conclusion, even if we were to  reach the merits

            of Del Rio's claim, we would  find no error in the sentencing

            court's  application  of the  relevant conduct  guidelines in

            effect at  the  time  of  sentencing.    The  district  court

            properly  determined, as  a matter  of law,  that the  motion

            constituted an abuse of the writ.

                      Affirmed.
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            claim  on direct appeal is excused by  a showing of cause and
            actual prejudice.   See Campino  v. United  States, 968  F.2d
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            187, 190 (2d Cir. 1992); United States v. Biberfeld, 957 F.2d
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            98, 104 (3d Cir. 1992).  While we need not decide  the issue,
            we  note that  Del Rio  has not  alleged that  her attorney's
            failure  to raise the issue on appeal constituted ineffective
            assistance of counsel.

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