USCA1 Opinion
September 23, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1231
UNITED STATES,
Appellee,
v.
EDWARD W. SEELEY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Edward W. Seeley on brief pro se.
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A. John Pappalardo, United States Attorney, and Brian T. Kelly,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Appellant challenges the district
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court's disposition of his motion under 28 U.S.C. 2255 and
former Rule 35(a), Federal Rules of Criminal Procedure, to
correct, modify or clarify his sentence. The district court
vacated appellant's conviction on two counts which it found
to be impermissibly repetitious of the remaining convictions,
but left unchanged the total punishment time. Appellant
complains that "more is owed to [him] than the symbolic
emptiness provided." We affirm the district judge's
disposition for substantially the same reasons as set forth
in her opinion.
In his notice of appeal, appellant assigned as
error the district court's reliance on Judge Keeton's opinion
in United States v. MacPherson, CR 87-34-K (May 10, 1991),
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aff'd, 959 F.2d 230 (1st Cir. 1992) (table), calling
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MacPherson an "obscure . . . unpublished case not available
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to the public." There was no error in the citation.
MacPherson involved one of appellant's codefendants, tried
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separately but charged in the same indictment. The issues in
Judge Keeton's opinion were directly related to those here.
See Loc. R. 36.2(b)6 (stipulating that unpublished opinions
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may be cited in related cases). Moreover, the argument calls
into question appellant's good faith. In his memorandum
below, appellant appended a copy of the MacPherson decision,
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and urged the district court to follow its reasoning.
Appellant also attempts on this appeal to attack
his conviction and sentence on two new grounds. We do not
consider issues raised for the first time on appeal, unless a
gross miscarriage of justice would otherwise occur or the new
ground is so compelling as "virtually to assure appellant's
success." Hernandez-Hernandez v. United States, 904 F.2d
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758, 763 (1st Cir. 1990).
Appellant's new arguments fall well outside of this
narrow exception. First, he challenges as unreliable hearsay
certain testimony at his trial. We previously rejected the
very same challenge on direct appeal, United States v.
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Seeley, 892 F.2d 1, 3-4 (1st Cir. 1989), so it will not be
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reviewed again on a 2255 motion. Barrett v. United States,
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965 F.2d 1184, 1190 (1st Cir. 1992).
Second, appellant argues that the trial judge was
biased, leading her to impose a sentence "grossly
disproportionate" to the sentencing guidelines. The
guidelines were not in effect on the date appellant was
sentenced and we have held squarely that, in a pre-guidelines
case, the sentencing judge has plenary authority to treat the
guidelines as extraneous surplusage. See United States v.
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Twomey, 845 F.2d 1132, 1134-35 (1st Cir. 1988). He cites no
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probative evidence for the claim of bias, but uses snippets
of public information to conjure up a personal profile of the
judge that is as irrelevant as it is unfounded. See Blizard
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v. Frechette, 601 F.2d 1217, 1221 (1st Cir. 1979) (there must
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be some reasonable factual basis to doubt the impartiality of
the tribunal).
For the reasons stated the judgment below is
affirmed.
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