June 10, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2150
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
THOMAS FIGUEROA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
Before
Torruella, Selya and Boudin,
Circuit Judges.
Thomas Figueroa on brief pro se.
Donald K. Stern, United States Attorney, and Dina Michael
Chaitowitz, Assistant United States Attorney, on brief for appellee.
Per Curiam. Thomas Figueroa appeals pro se from the
denial of his motion under 28 U.S.C. 2255 to vacate, set
aside, or correct his sentence. Following his conviction for
conspiracy and attempt to possess with intent to distribute
500 or more grams of cocaine, petitioner received a prison
term of 97 months. This court thereafter affirmed his
conviction and his sentence. United States v. Figueroa, 976
F.2d 1446 (1st Cir. 1992), cert. denied, 113 S. Ct. 1346
(1993). Petitioner now raises three issues, two relating to
his sentence and a third involving his underlying conviction.
He first contends that the district court improperly
calculated the quantity of cocaine for which he was
responsible for purposes of sentencing. We rejected this
identical contention on direct appeal, see id. at 1460-61,
and so will not revisit the issue here. See, e.g., Barrett
v. United States, 965 F.2d 1184, 1190 n.11 (1st Cir. 1992)
(issues decided on direct appeal will not be reviewed again
by way of 2255 motion).
Petitioner's second claim involves the determination as
to his role in the offense. The court reduced his offense
level by two levels on the ground that he was a "minor"
participant under U.S.S.G. 3B1.2(b). Petitioner now
asserts that the court was clearly erroneous in declining to
impose a four-level reduction under 3B1.2(a) for "minimal"
participation, or alternatively that his counsel was
ineffective in failing to seek such a reduction. He contends
in this regard that his alcoholism was so disabling during
the relevant period that he was incapable of anything more
than tangential involvement in the conspiracy. To the
contrary, the evidence of petitioner's participation--as
revealed especially in two recorded telephone conversations
he had with the government informant and as otherwise
described in our earlier opinion--demonstrates that his role
was more considerable than he suggests. We also note that
counsel did, in fact, initially propose that a four-level
reduction be applied. We find no clear error on the part of
the court, and no substandard performance on the part of
counsel.
Petitioner's final argument is difficult to decipher.
To the extent he is alleging "sentencing factor
manipulation," see, e.g., United States v. Brewster, 1 F.3d
51, 55 (1st Cir. 1993), as the district court assumed, we
reject such claim for the reasons recited in the recent
appeal of a codefendant. See Figueroa v. United States, 19
F.3d 7, No. 93-2028, slip op. at 3-4 (1st Cir. 1994) (table).
To the extent he is alleging governmental entrapment (or
ineffective assistance for failure to pursue such a defense),
it suffices to note that the record utterly belies any
suggestion of "government inducement" or "lack of
predisposition." United States v. Gifford, 17 F.3d 462, 468
-3-
(1st Cir. 1994) (citing Jacobson v. United States, 112 S. Ct.
1535 (1992)). Indeed, the two recorded conversations by
themselves demonstrate that petitioner was anything but a
reluctant participant. To the extent he is arguing that
counsel improperly dissuaded him from testifying, we observe
that petitioner personally disclaimed any interest in doing
so in response to inquiries from the court. See, e.g., Lema
v. United States, 987 F.2d 48, 52-53 (1st Cir. 1993)
(evidence that petitioner "knowingly and voluntarily" waived
right to testify defeated ineffective assistance claim). And
to the extent he is seeking to vacate his conviction due to
newly discovered evidence, we reject the claim on the grounds
that it was not advanced below and is in any event entirely
conclusory.
Finally, as each of petitioner's claims (where
possessing the requisite factual specificity) was subject to
refutation on the basis of the existing record, the court was
justified in dismissing the petition without a hearing. See,
e.g., United States v. McGill, 11 F.3d 223, 225-26 (1st Cir.
1993).
Affirmed.
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