March 22, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2028
ANGEL LUIS FIGUEROA,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Cyr, Circuit Judges.
Angel Figueroa on brief pro se.
A. John Pappalardo, United States Attorney, and Dina Michael
Chaitowitz, Assistant United States Attorney, on brief for appellee.
Per Curiam. Angel Luis Figueroa appeals pro se from the
denial of a motion under 28 U.S.C. 2255 to vacate, set
aside, or correct his sentence. In 1990, upon being
convicted of both conspiring and attempting to possess with
intent to distribute 500 or more grams of cocaine, Figueroa
was sentenced to a prison term of 188 months. This court
thereafter affirmed both his conviction and his sentence.
United States v. Figueroa, 976 F.2d 1446 (1st Cir. 1992),
cert. denied, 113 S. Ct. 1346 (1993). Figueroa now advances
a pair of challenges to his sentence, claiming that (1) the
quantity of drugs for which he was held accountable was
improperly inflated because of "sentencing entrapment" and
other reasons, and (2) his base offense level was improperly
enhanced by four levels because of his alleged leadership
role. As a corollary complaint, he argues that his counsel
was ineffective in failing to raise these issues earlier.
Assuming arguendo that such contentions are cognizable in a
2255 proceeding, we find each of them unpersuasive and
therefore affirm.
As explained in greater detail in our earlier opinion,
Figueroa and his confederates were apprehended as a result of
a "reverse-sting" operation involving their attempted
purchase of drugs from an informant for the Drug Enforcement
Agency (Estaban Mendoza). See id. at 1450-51. During the
course of his negotiations with Mendoza, Figueroa discussed
purchasing anywhere from three to five kilograms of cocaine,
explaining that his organization had been selling
approximately $6,000 worth of the drug per day in "dime"
bags. The parties settled upon an initial sale of two
kilograms, with $30,000 being paid up-front and $10,000 to
follow. The sum of $29,850 was in fact seized at the time of
arrest. At sentencing, the court determined that Figueroa
was responsible not only for the two kilograms involved in
the attempted sale, but for an additional three kilograms as
well. This latter figure was reached by extrapolating the
approximate amount of cocaine distributed over the course of
the conspiracy based on Figueroa's acknowledged sales of
$6,000 per day.1 Figueroa now contends that it was error to
hold him accountable for five kilograms for purposes of
sentencing.
The basis for this challenge is amorphous in nature. In
his petition, Figueroa devotes considerable attention to the
notion of "sentencing entrapment" (or, more properly,
"sentencing factor manipulation"). Whatever the theoretical
viability of such a doctrine, see, e.g., United States v.
Brewster, 1 F.3d 51, 55 (1st Cir. 1993); United States v.
Panet-Collazo, 960 F.2d 256, 262 (1st Cir.), cert. denied,
1. The indictment charged that the conspiracy occurred
between December 24, 1989 and January 25, 1990. A DEA agent
testified that one kilogram of cocaine would generate
approximately $70,000 when distributed in "dime" bags. See
976 F.2d at 1461 n.19.
-3-
113 S. Ct. 220 (1992); United States v. Connell, 960 F.2d
191, 194-97 (1st Cir. 1992) (all rejecting such a claim on
basis of facts presented), the instant case provides no
occasion to address it. Figueroa's claim in this regard is
based on the misimpression that the additional three
kilograms in question were those that he and Mendoza
discussed for possible sale during their negotiations (beyond
the two kilograms actually agreed upon). Instead, as
mentioned, this figure reflected the quantity of drugs that
Figueroa had admitted selling to others during the previous
month. Figueroa specifically disclaims any suggestion that
the two kilograms involved in the attempted sale were the
subject of "manipulation." And any such argument would have
faltered for the reasons recited in Brewster, 1 F.3d at 55.
In a related (if inconsistent) vein, Figueroa contends
that the evidence was insufficient to hold him responsible
for the three kilograms sold by his organization during the
course of the conspiracy. We rejected the identical argument
on direct appeal. Referring to (Angel) Figueroa and his
brother Tomas, we stated:
Tomas, as well as Angel, admitted that $6,000 worth
of "dime" bags were being sold daily through the
record shop during the alleged conspiracy.
Although appellants characterize these statements
as mere "puffery," the sentencing judge who heard
the trial testimony was entitled to credit their
admissions. The court permissibly extrapolated the
approximate amount of cocaine distributed during
the relevant period based on the sums of money
admittedly received. There was no clear error in
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the determination of the quantity of cocaine for
which Angel and Tomas Figueroa were responsible.
976 F.2d at 1460-61 (citations and footnotes omitted).
Figueroa's challenge to the determination regarding his
role in the offense is likewise unavailing. The district
court held that he was "an organizer or leader" under
U.S.S.G. 3B1.1(a) and thus was subject to a four-level
enhancement. On appeal, Figueroa argues only that the
evidence was insufficient to establish that he occupied a
leadership role. To the contrary, as our earlier opinion
amply demonstrates, see 976 F.2d at 1450-51, the district
court supportably found that he "directed ... all the
activities of his co-conspirators" and that he was "the
controlling participant in negotiating the amount [of cocaine
to be purchased], the price, and the arrangements for
delivery of the money to the confidential informant." App.
44. "Role in the offense" determinations are subject to
review only for clear error. See, e.g., United States v.
Ruiz-Del Valle, 8 F.3d 98, 104 (1st Cir. 1993). We find none
here.
Finally, as each of Figueroa's central arguments proves
wanting, his subsidiary allegations regarding ineffective
assistance of counsel must also fail.
Affirmed.
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