November 22, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1495
UNITED STATES,
Appellee,
v.
ALFONSO A. BLANCO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Selya, Circuit Judges.
Alfonso A. Blanco on brief pro se.
Edwin J. Gale, United States Attorney, Margaret E. Curran and
Kenneth P. Madden, Assistant United States Attorneys, on brief for
appellee.
Per Curiam. Alfonso A. Blanco appeals pro se a
district court order denying his motion for modification of
sentence under 18 U.S.C. 3582(c)(2). We affirm.
I.
In February 1989, Blanco pled guilty to three
counts of possessing cocaine with intent to distribute,
violations of 21 U.S.C. 841(a)(1) and (b)(1)(C). The
district court applied U.S.S.G. 2D1.1 in determining
Blanco's offense level and, in April 1989, imposed a sentence
of 84 months imprisonment. On appeal, we affirmed, inter
alia, the use of a kilogram of cocaine for sentencing
purposes - - despite Blanco's contentions that the charges to
which he pled guilty involved only 125 grams of cocaine - -
because the additional drug quantities were properly
countable under U.S.S.G. 1B1.3(a) as part of the same
conduct, scheme, or plan as the convicted offenses. United
States v. Blanco, 888 F.2d 907, 909 (1st Cir. 1989). In
April 1992, Blanco filed a pro se motion to vacate sentence
under 28 U.S.C. 2255 alleging ineffective assistance of
counsel, that his plea was involuntary, and that he was
deprived his presentence report rights under Fed. R. Civ. P.
32. The district court denied the motion and we affirmed.
United States v. Blanco, No. 92-2024 (1st Cir. Jun. 9, 1993).
In December 1992, Blanco filed this motion for modification
alleging that he was entitled to a reduction in sentence
because of a November 1992 amendment to the commentary to
guideline 2D1.1. Blanco contended that under Amendment
447, App. C at 269-71, which revised application note1 12 to
2D1.1, his offense level should be reduced because he was
not reasonably capable of producing a kilogram of cocaine.
In reply to the government's opposition to the motion, Blanco
asserted, for the first time, that his attorney was
ineffective in failing to raise the "capability" defense.2
1. Note 12 of the commentary to 2D1.1 deals with types and
quantities of drugs not specified in the count of conviction
which may be considered, under 1B1.3(a)(2) (relevant
conduct), in determining the offense level. The revision
upon which Blanco relies states, in pertinent part:
In an offense involving negotiation to traffic in a
controlled substance, the weight under negotiation
in an uncompleted distribution shall be used to
calculate the applicable amount. However, where
the court finds that the defendant did not intend
and was not reasonably capable of producing the
negotiated amount, the court shall exclude from the
guideline calculation the amount that it finds the
defendant did not intend to produce and was not
reasonably capable of producing.
The second sentence is identical to one formerly appearing in
2D1.4 (attempts and conspiracies), comment. (n.1), by
virtue of Amendment 136, effective November 1, 1989. See
App. C at 64. Amendment 447 deleted 2D1.4 and its
application notes and moved much of that text into the
2D1.1 commentary. App. C at 270.
In April 1989, when Blanco was sentenced, 2D4.1,
comment. (n.1) provided, in part: "Where the defendant was
not reasonably capable of producing the negotiated amount,
the court may depart and impose a sentence lower than the
sentence that would otherwise result." (Emphasis supplied).
Amendment 136 replaced this sentence by the second sentence
quoted above, and that replacement was carried over in
Amendment 447.
2. Such claims are outside the scope of a 3582(c)(2)
motion. Even if we were to construe this motion as a 2255
petition, since, as the discussion below indicates, Blanco
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The district court denied the motion for
modification of sentence reasoning that the amendment on
which Blanco relied was not retroactive because it was not
specifically listed in guideline policy statement
1B1.10(d). That, the district court decided, effectively
"closed the door" on the retroactive application of the
amendment to 2D1.1. Blanco's principal argument on appeal
is that he was improperly sentenced on the basis of a
negotiated-for quantity of cocaine, a kilogram, that he was
incapable of producing.
II.
A sentence may be reduced only under extremely
narrow circumstances. 18 U.S.C. 3582(c). "[T]he court may
not modify a term of imprisonment once it has been imposed"
unless "such a reduction is consistent with the applicable
policy statements issued by the Sentencing Commission."
3582(c)(2). Contrary to Blanco's argument that policy
statements, such as 1B1.10, are no more than interpretive
guides, the Supreme Court has made plain that "[t]he
principle that the Guidelines Manual is binding on federal
courts applies as well to policy statements." Stinson v.
United States, 113 S. Ct. 1913, 1917 (1993), citing Williams
has no legal right to benefit from the post-sentence
amendments to 2D1.1, no prejudice resulted from the alleged
ineffective assistance. Hill v. Lockhart, 474 U.S. 52, 59
(1985).
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v. United States, 112 S. Ct. 1112, 1119 (1992) ("[A] policy
statement [which] prohibits a district court from taking a
specified action . . . is an authoritative guide to the
meaning of the applicable guideline.").
Moreover, "[i]n addition to the duty to review and
revise the guidelines, Congress has granted the Commission
the unusual explicit power to decide whether and to what
extent its amendments reducing sentences will be given
retroactive effect. 28 U.S.C. 994(u). This power has been
implemented in Guideline 1B1.10, which sets forth the
amendments that justify sentence reduction." Braxton v.
United States, 111 S. Ct. 1854, 1858 (1991). In United
States v. Havener, 905 F.2d 3, 7 (1st Cir. 1990), we noted
that policy statement 1B1.10 "expressly forbids retroactive
application" of an amendment not listed in 1B1.10(d).
Section 1B1.10(a) provides, in pertinent part: "If none of
the amendments listed in subsection (d) is applicable, a
reduction in the defendant's term of imprisonment under 18
U.S.C. 3582(c)(2) is not consistent with this policy."
Neither Amendment 447 nor Amendment 136, both post-sentence
commentary amendments to 2D1.1, see n.1, are included in
1B1.10(d)'s list of amendments intended to be retroactive.
Thus, as the district court correctly found, 1B1.10
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controls.3. Since the 3582(c)(2) relief sought here is
triggered only if a subsequent amendment to the Guidelines
appears on the 1B1.10(d) list, it would be inconsistent
with the Commission's policy statements to apply Amendment
447 or 136 retroactively and to reduce Blanco's sentence.
See United States v. Avila, 997 F.2d 767, 768 (10th Cir.
1993); United States v. Wilson, 997 F.2d 429, 431 (8th Cir.
1993); Desouza v. United States, 995 F.2d 323, 324 (1st Cir.
1993).
Accordingly, the district court's order is
affirmed.
3. It is also clear, see n.2 above, that Amendments 447 and
136 are more than mere clarifications of 2D1.1. See
Havener, 905 F.2d at 5; see also Desouza v. United States,
995 F.2d 323, 324 (1st Cir. 1993).
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