David v. United States

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 97-1398

SHMUEL DAVID,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

Peter Goldberger, with whom Pamela A. Wilk was on brief, for

appellant.
Robert L. Peabody, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief, for

appellee.

January 27, 1998

SELYA, Circuit Judge. Some four years ago, petitioner-
SELYA, Circuit Judge.

appellant Shmuel David filed a motion for post-conviction relief

pursuant to 28 U.S.C. 2255 (1994).1 The district court

eventually denied the petition without holding an evidentiary

hearing. David appeals. We affirm.

I.
I.

Background
Background

On direct appeal, we described the petitioner's case as

"involv[ing] a spider web of drug dealing, with David at the

web's center," United States v. David, 940 F.2d 722, 726 (1st

Cir. 1991) (David I), and we proceeded to affirm his convictions

on a myriad of charges. Inasmuch as the predicate facts are set

out at length in that opinion, we offer only a pr cis of those

events to set the stage for the instant appeal.

In David I, the government charged that, during 1986,

1987, and 1988, David, thirteen codefendants, and various other

persons engaged in extensive cocaine trafficking. Mirroring the

prosecution's theory that a shift from domestic to foreign

suppliers transmogrified the operation, the indictment described

1Congress subsequently enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214 (codified in scattered sections of 28 U.S.C.).
The new law took effect on April 24, 1996. The Supreme Court has
determined, in general, that AEDPA does not apply to habeas
petitions that were pending on AEDPA's effective date. See Lindh

v. Murphy, 117 S. Ct. 2059, 2067-68 (1997) (discussing amendments

to habeas procedures in cases brought under 28 U.S.C. 2254);
see also Martin v. Bissonette, 118 F.3d 871, 874 (1st Cir. 1997)

(applying Lindh). We believe that this rationale applies to

section 2255 motions (which are, after all, a species of habeas
petitions). Thus, we measure the petitioner's case against pre-
AEDPA benchmarks.

2

two conspiracies: one beginning in 1986 and ending in March of

1988, and the other taking up where the first left off and ending

later that year. Following a nine-week trial, a jury found the

petitioner guilty on twenty-two counts, including charges that

he: (a) engaged in a continuing criminal enterprise (CCE), see

21 U.S.C. 848; (b) participated in both conspiracies, see 21

U.S.C. 846; (c) possessed cocaine with intent to distribute on

several occasions, see 21 U.S.C. 841(a)(1); and (d) facilitated

numerous drug transactions by using the telephone, see 21 U.S.C.

843(b).

At the disposition hearing, the district court,

employing the January 1988 edition of the sentencing guidelines,

grouped related offenses, see USSG 3D1.1(a); used available

drug-quantity evidence to fix a base offense level of 36, see

USSG 2D1.1; added two levels for possession of a firearm during

the commission of an offense, see USSG 2D1.1(b); added four more

levels for the petitioner's leadership role, see USSG 3B1.1; and

subtracted two levels for acceptance of responsibility, see USSG

3E1.1. In the end, the district court sentenced the petitioner

within the computed guideline sentencing range, imposing a

thirty-year incarcerative term on the CCE and various "grouped"

possession counts and shorter periods of immurement on the

remaining charges. The court designated all the sentences to run

concurrently.

Represented by new counsel, David appealed. We vacated

the conspiracy convictions as violative of the multiple

3

punishments prong of the Double Jeopardy Clause, given the

conviction and sentence on the encompassing CCE count. See David

I, 940 F.2d at 738 (citing United States v. Rivera-Martinez, 931

F.2d 148, 152-53 (1st Cir. 1991)). In all other respects, we

affirmed the convictions and the corresponding sentences.

On January 7, 1994, while still incarcerated, the

petitioner retained fresh counsel and filed a motion for post-

conviction relief in the district court. Judge Gertner assumed

responsibility for the motion in place of the late Judge

McNaught, who had presided over the trial and had imposed

sentence. She ultimately denied it on January 2, 1997, but did

not deign to hold an evidentiary hearing. Without missing a

beat, the petitioner changed counsel again. His new lawyers

filed a motion for reconsideration on February 26, 1997, which

Judge Gertner also denied. The petitioner appeals solely from

the original denial of post-conviction relief.

II.
II.

Analysis
Analysis

The petitioner advanced three claims in the court

below. Two of these claims related to the propriety of the

sentencing calculations; one questioned the firearms enhancement

and the second questioned the upward adjustment for role in the

offense. The remaining claim posited ineffective assistance of

trial counsel, stemming not only from an alleged failure to raise

this pair of sentencing objections, but also from an alleged

failure promptly to relay a potentially favorable plea bargain to

4

the petitioner. On appeal, David has not continued his campaign

against the role-in-the-offense adjustment, and we deem that

challenge abandoned. See, e.g., United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990). He does, however, renew the other

two claims. After a brief introduction, we address each of them.

A.
A.

Introduction
Introduction

Section 2255 is not a surrogate for a direct appeal.

Rather, the statute provides for post-conviction relief in four

instances, namely, if the petitioner's sentence (1) was imposed

in violation of the Constitution, or (2) was imposed by a court

that lacked jurisdiction, or (3) exceeded the statutory maximum,

or (4) was otherwise subject to collateral attack. See Hill v.

United States, 368 U.S. 424, 426-27 (1962) (construing statute).

The catch-all fourth category includes only assignments of error

that reveal "fundamental defect[s]" which, if uncorrected, will

"result[] in a complete miscarriage of justice," or

irregularities that are "inconsistent with the rudimentary

demands of fair procedure." Id. at 428. In other words, apart

from claims of constitutional or jurisdictional nature, a

cognizable section 2255 claim must reveal "exceptional

circumstances" that make the need for redress evident. See id.

The burden is on the petitioner to make out a case for section

2255 relief. See Mack v. United States, 635 F.2d 20, 26-27 (1st

Cir. 1980).

B.
B.

5

The Firearms Enhancement
The Firearms Enhancement

The petitioner asserts that, as of the date of

disposition (August 1, 1989), the guidelines did not authorize

the two-level sentence enhancement imposed by Judge McNaught for

the use of a firearm an enhancement that tacked at least sixty-

seven additional months onto David's sentence. This claim

presents a bit of a moving target. In his section 2255 motion

and in the court below, David asseverated that a two-level

increase only could have materialized if it were authorized for

the CCE conviction, and that the two-level firearms enhancement

was unavailable because the applicable sentencing guideline, USSG

2D1.5, did not make reference to it.

Having secured yet a fourth set of attorneys in the

interim, the petitioner recast his argument in his motion for

reconsideration, and now has come hard about. In this venue, he

barely mentions section 2D1.5, but, rather, shapes his argument

around USSG 2D1.1. Paying very little heed to the fact that he

initially told the lower court that section 2D1.1 did not apply

at all, he now maintains that section 2D1.1 is the correct focal

point, but that it cannot support the enhancement.

We approach this moving target with considerable

caution. It is well established that a party may not unveil an

argument in the court of appeals that he did not seasonably raise

in the district court. See United States v. Slade, 980 F.2d 27,

30 (1st Cir. 1992); see also Singleton v. United States, 26 F.3d

233, 240 (1st Cir. 1994) (invoking this principle in a section

6

2255 case); United States v. Mariano, 983 F.2d 1150, 1158 n.9

(1st Cir. 1993) (invoking this principle in respect to sentencing

issues).

To apply the principle here, we must measure the

petitioner's current argument against that limned in his section

2255 motion and advanced before Judge Gertner, not by reference

to the theory that he belatedly surfaced in his request for

reconsideration.2 See Barrett v. United States, 965 F.2d 1184,

1187 n.3 (1st Cir. 1992); Mackin v. City of Boston, 969 F.2d

1273, 1278-79 (1st Cir. 1992); In re Sun Pipe Line Co., 831 F.2d

22, 24 (1st Cir. 1987). Although the petitioner contends that

the argument he makes today is merely a more sophisticated

statement of a refrain contained in his section 2255 motion, that

is plainly not the case. The two arguments are markedly

different. Consequently, the newer version is by the boards.

The petitioner correctly reminds us that an appellate

court has discretionary power to override a forfeiture of this

type. To justify deploying this seldom-used power, however, the

newly emergent contention must be one that practically guarantees

the appellant's success. See Slade, 980 F.2d at 31. Here, the

forfeited argument is considerably less than robust. We explain

briefly.

The firearms enhancement about which the petitioner

2Even were we disposed to consider the argument advanced in
the petitioner's untimely motion for reconsideration, we could
not do so because the petitioner has not appealed from the denial
of that motion. See Barrett v. United States, 965 F.2d 1184,

1188 (1st Cir. 1992).

7

complains arose out of a discrete set of facts. In June 1987, a

drug courier by the name of Filin, employed by David and his

confederates, tried to purloin a shipment of cocaine by faking a

robbery. The petitioner saw through the charade and later

threatened Filin at gunpoint in an attempt to coerce a

confession.

Under the sentencing regime imposed by the guidelines,

the law in effect on the date of the disposition hearing governs,

absent ex post facto concerns. See United States v. Harotunian,

920 F.2d 1040, 1041-42 (1st Cir. 1990). Hewing to this line, the

government defends the enhancement by pointing to the version of

USSG 2D1.1(b)(1) that took effect on January 15, 1988. That

guideline provided for a two-level upward adjustment if a firearm

"was possessed during commission of the offense." USSG

2D1.1(b)(1). The government concedes that "the offense" must be

an offense to which the guidelines attached, thus restricting the

enhancement in this case to the two drug distribution counts that

transpired in 1988, namely, counts 15 and 16.3 Notwithstanding

this concession, the government posits that the phrase "during

commission of the offense" requires reference to the "relevant

conduct" guideline, which in its 1988 iteration indicated (with

certain exceptions not germane here) that an "offense" generally

3These counts, each of which charged a violation of 21
U.S.C. 841(a)(1), are the only post-guidelines counts of
conviction that are legally capable of supporting the firearms
enhancement. The CCE sentencing paradigm did not provide for
such an enhancement, and the two conspiracy convictions have been
vacated.

8

is deemed to include "all acts . . . committed or aided and

abetted by the defendant . . . that occurred during the

commission of the offense of conviction," USSG 1B1.3(a)(1), and

that, with respect to "grouped" offenses, see USSG 3D1.2(d), an

"offense" generally is deemed to include all "acts and omissions

that were part of the same course of conduct or common scheme or

plan as the offense of conviction," USSG 1B1.3(a)(2). Since the

Filin episode was part of the same course of conduct or common

scheme or plan as the vignettes on which counts 15 and 16 were

premised, the government's thesis runs, the petitioner possessed

the gun "during commission of the offense."

The petitioner's counter-argument is somewhat more

convoluted. As a general matter, he maintains that the

government defines "the offense" too broadly and that the

phrase's scope is restricted to the specific offense(s) of

conviction and does not include "relevant conduct." On this

basis, he argues, his proven use of a firearm could not support

the enhancement because that use did not occur in the course of

an offense of conviction to which the guidelines attached.

Indeed, he adds, since the gun use took place before the

effective date of the guidelines, it could not possibly have

occurred as part of such an offense.

After studying the guideline provision, we reject the

petitioner's hypothesis. We conclude instead that the phrase

"the offense," fairly read, bears the broader interpretation

ascribed to it by the government and the district court. Our

9

conclusion is grounded in the language, structure, and theory of

the sentencing guidelines, and it is reinforced by an amendment

that the Sentencing Commission adopted subsequent to the events

at issue here. See USSG App. C, Amend. 394 (Nov. 1991). That

amendment deleted the "during commission of the offense" language

from section 2D1.1(b)(1) and thus confirmed the government's

interpretation of the guideline as extending to relevant conduct.

We do not embrace the petitioner's suggestion that

Amendment 394 is inapposite. The general rule is that

revisionary amendments to the guidelines that is, amendments

which change the law in a substantive way cannot be applied

retroactively by a sentencing court to a defendant's

disadvantage. See United States v. Rostoff, 53 F.3d 398, 406

(1st Cir. 1995). By contrast, clarifying amendments that is,

amendments which do not change the law, but which merely

elucidate its intended meaning can be freely used by sentencing

(or sentence-reviewing) courts as interpretive aids,

prospectively or retrospectively. See Isabel v. United States,

980 F.2d 60, 62 (1st Cir. 1992); United States v. Ruiz-Batista,

956 F.2d 351, 353-54 (1st Cir. 1992). When determining whether a

guideline amendment is revisionary as opposed to clarifying, an

inquiring court must accord substantial respect to the Sentencing

Commission's view on the subject. See Isabel, 980 F.2d at 62.

In effecting Amendment 394, the Sentencing Commission stated that

"[t]his amendment clarifies that the provisions of 1B1.3(a)(2)

[incorporating as relevant conduct all acts which were part of

10

the same course of conduct as the offense of conviction] apply to

the adjustments in 2D1.1(b)(1)." The Commission's

characterization of Amendment 394 appears apt: it is designed to

disambiguate the guideline provision and thereby mitigate any

confusion caused by the original wording.

That is game, set, and match. Because Amendment 394

worked no substantive change in preexistent law, a sentencing or

reviewing court may apply it retroactively. See United States v.

LaCroix, 28 F.3d 223, 227 n.4 (1st Cir. 1994); United States v.

Valencia-Lucena, 988 F.2d 228, 234 n.4 (1st Cir. 1993); see also

USSG 1B1.11(b)(2) (Nov. 1993). We do so here.

The Commission's language could not be more

straightforward. Amendment 394 makes it plain that the "relevant

conduct" provisions (such as section 1B1.3(a)(2)) apply to the

adjustments in section 2D1.1(b)(1) (such as the firearms

enhancement). Accordingly, Amendment 394 fully validates the

district court's use of a "relevant conduct" approach to the

firearms enhancement.

The petitioner's fallback position is no more

persuasive. He contends that, even if the sentencing guidelines

permit the enhancement when a firearm was used during pre-

guidelines conduct "relevant" to a post-guidelines offense of

conviction, his gun use does not so qualify because the Filin

incident (which took place in 1987) was not part of the same

course of conduct, common scheme, or plan that underlays counts

15 and 16 (both of which focus on events that occurred in April

11

of 1988).

This contention depends on an artificial distinction.

The petitioner notes that his use of a firearm occurred within

the time frame of the so-called first conspiracy, whereas the

conduct underlying the two post-guidelines drug distribution

counts occurred within the time frame of the so-called second

conspiracy. Based on this chronology, he theorizes that the

enhancing conduct the gun use cannot be "relevant" to the

offenses of conviction.

The fallacy in this theory is that "a course of conduct

or common scheme or plan," as that phrase is used in the

sentencing guidelines, is broader than, rather than coterminous

with, the definition of a "conspiracy" as that term of art is

used in the overall criminal law. See United States v. Wood, 924

F.2d 399, 403 (1st Cir. 1991); see also United States v. Spence,

125 F.3d 1192, 1195 (8th Cir. 1997); United States v. Boney, 977

F.2d 624, 635 (D.C. Cir. 1992). Thus, whether or not enveloped

within the same conspiracy, offenses may qualify as occurring

within the same course of conduct as long as they are related

sufficiently to allow a rational factfinder to conclude that

"they are part of . . . [an] ongoing series of offenses." USSG

1B1.3(a), comment. (n.9(B)). In the same vein, "[f]or two or

more offenses to constitute part of a common scheme or plan,"

they only need to "be substantially connected to each other by at

least one common factor, such as . . . accomplices, [or] common

purpose. . . ." USSG 1B1.3(a), comment. (n. 9(A)).

12

This dichotomy makes a world of difference. Although

the petitioner's drug trafficking resulted in two separate

charged conspiracies, the framing of the charges cannot obscure

the fact that, throughout the cocaine trafficking described in

the indictment, the petitioner and his principal accomplices

remained at the center of an ongoing enterprise devoted to a

single purpose.4 The shift in the source of supply permitted the

prosecutor to divide the enterprise into two segments and to

charge some defendants accordingly, but the petitioner never

deviated from his main business: the acquisition, distribution,

and sale of cocaine in a specific region. Because the

petitioner's activities during 1986, 1987, and 1988 constituted

an ongoing series of offenses, the district court did not err in

imposing the firearms enhancement.

C.
C.

Ineffective Assistance of Counsel
Ineffective Assistance of Counsel

Insofar as the petitioner's ineffective assistance of

counsel claim relates to the sentencing phase, it is impuissant.

The petitioner received an appropriate sentence, see supra Part

II(B), and, absent any prejudice, an ineffective assistance claim

cannot prosper. See Scarpa v. Dubois, 38 F.3d 1, 8-9 (1st Cir.

1994). We turn, then, to a consideration of the remaining tine

of the petitioner's claim: that he received substandard

assistance because his trial counsel failed promptly to

4The David I record discloses that at least three other

ringleaders (Yehuda Yarden, Joseph Zalmanovich, and Mordechai
Mizrahi) were involved with the petitioner in both conspiracies.

13

communicate a favorable plea bargain to him.

The genesis of this claim is as follows. In his motion

(or, more accurately, in a memorandum accompanying it), the

petitioner averred that he learned at some indeterminate time of

a favorable plea offer extended by the government but not

communicated to him until after its withdrawal. Had the offer

been made known to him, the petitioner ruminates, he "likely"

would have accepted it. The averment contains no specifics,

e.g., who made the proposal, when it was tendered, what

conditions were attached to it, why it was withdrawn, or how the

petitioner came to hear of it.5

Judge Gertner dismissed the unsupported allegation out

of hand. On appeal, the petitioner argues only that the judge

erred in brushing aside the allegation without a hearing. We

review the district court's denial of an evidentiary hearing for

abuse of discretion. See United States v. Garcia, 954 F.2d 12,

19 (1st Cir. 1992).

A prisoner who invokes section 2255 is not entitled to

an evidentiary hearing as a matter of right. See United States

v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). Even if a hearing

is requested, a district court properly may forgo it when (1) the

motion is inadequate on its face, or (2) the movant's

5In his papers, the petitioner merely asserted that he
"later learned that during pre-trial period the Government made a
plea offer . . . in return for a sentence of 19 years and 6
months. Counsel failed to adequately communicate this offer . .
. until the offer had been withdrawn. [I]n all likelihood . . .
[he] would have accepted said plea offer."

14

allegations, even if true, do not entitle him to relief, or (3)

the movant's allegations "need not be accepted as true because

they state conclusions instead of facts, contradict the record,

or are `inherently incredible.'" Id. at 225-26 (citation

omitted); see also Rule 4(b), Rules Governing Section 2255

Proceedings.

To progress to an evidentiary hearing, a habeas

petitioner must do more than proffer gauzy generalities or drop

self-serving hints that a constitutional violation lurks in the

wings. A representative case is Machibroda v. United States, 368

U.S. 487 (1962), in which the petitioner's section 2255 motion

alleged that his guilty plea resulted from an unkept

prosecutorial promise. After the trial court dismissed the

motion without an evidentiary hearing and the court of appeals

affirmed, the Supreme Court reversed, noting that "[t]he

petitioner's motion and affidavit contain charges which are

detailed and specific." Id. at 495. In a pithy passage that

possesses particular pertinence for present purposes, the Court

cautioned that a habeas petitioner is not automatically entitled

to a hearing and normally should not receive one if his

allegations are "vague, conclusory, or palpably incredible." Id.

This is true, the Court wrote, even "if the record does not

conclusively and expressly belie [the] claim." Id.

Inferior courts routinely have applied the Machibroda

standard in determining the need for evidentiary hearings on

section 2255 motions. Allegations that are so evanescent or

15

bereft of detail that they cannot reasonably be investigated

(and, thus, corroborated or disproved) do not warrant an

evidentiary hearing. See Dalli v. United States, 491 F.2d 758,

761 (2d Cir. 1974) (holding that the district court supportably

refused to convene an evidentiary hearing when the petitioner's

allegations were "vague, indefinite and conclusory"); see also

Amos v. Minnesota, 849 F.2d 1070, 1072 (8th Cir. 1988) (upholding

the denial of an evidentiary hearing in a section 2254 case

inasmuch as petitioner "offered only general allegations").

In this instance, the district court was not obliged to

credit the petitioner's threadbare allusions to a phantom plea

bargain. Who, what, when, where, and how details might have

placed matters of ascertainable fact at issue and thus have

bolstered the case for an evidentiary hearing, but none were

forthcoming. To the contrary, the petitioner offered the

district court no names, dates, places, or other details, even

though such details presumably were within his ken. In the

absence of any particulars, the lower court justifiably treated

the petitioner's conclusory averments as mere buzznacking.

The petitioner points to United States v. Rodriguez

Rodriguez, 929 F.2d 747 (1st Cir. 1991) (per curiam), as support

for his contention that, when a section 2255 motion alleges that

defense counsel failed to inform the defendant of a plea offer,

the district court must hold an evidentiary hearing. That case

provides David with cold comfort, for the court there took pains

to admonish petitioners that, in order to secure an evidentiary

16

hearing on such a claim, they must tender more than conclusory

allegations. See id. at 752. Rodriguez, unlike David, "provided

adequate factual specifications beyond bald speculation," and

therefore merited an evidentiary hearing. Id.

To sum up, the petitioner has put forth less than the

bare minimum that is necessary to warrant an evidentiary hearing.

On this gossamer showing, the district court did not abuse its

discretion in refusing to license a fishing expedition.

III.
III.

Conclusion
Conclusion

We need go no further. The petitioner's sentencing

arguments are procedurally defective and substantively infirm.

By like token, his unparticularized claim that a phantom plea

bargain lapsed for want of timely communication is much too vague

to demand an evidentiary hearing. Hence, the court below did not

err in rejecting David's section 2255 motion.

Affirmed.
Affirmed.

17