Manrique v. United States

• Court: Court of Appeals for the First Circuit
• Decided: July 20, 1993
• Docket: 92-2326
• Status: Published

Opinion

USCA1 Opinion

July 20, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 92-2326 

                              NESTOR FERNANDO-MANRIQUE,

                                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. Walter Jay Skinner, U.S. District Judge]
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                                 ____________________

                                        Before

                              Torruella, Cyr and Boudin,
                                   Circuit Judges.
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                                 ____________________

            Nestor Fernando-Manrique on brief pro se.
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            A. John Pappalardo,  United States Attorney, and Jeffrey A. Locke,
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        Assistant United States Attorney, on brief for appellee.

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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
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            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
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            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

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            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.

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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,
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            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
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            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.

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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
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                      prediction  contained in  the presentence
                      _________________________________________
                      report is irrelevant.
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            Id. at 544 (emphasis added).
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                      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
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performance" had a detrimental  effect on the judgment.   See
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            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
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            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.
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