USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-2024

ALFONSO A. BLANCO,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
__________________
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 Cyr, Circuit Judges.
______________
___________________

Alfonso A. Blanco on brief pro se.

_________________
Lincoln c. Almond, United States Attorney, Margaret E.
___________________
___________
Curran and Kenneth P. Madden, Assistant United States Attorneys,
______
_________________
on brief for appellee.
__________________
June 9, 1993
__________________

Per Curiam.
__________
guilty in

1989 to

three counts

intent to distribute.
with two counts
conspiracy to
return

for

following the

of possessing

distribute, but
Blanco's

cocaine with

The government had also charged Blanco

of attempted distribution, and

guilty

it dropped
plea.

The

one count of

those charges
district

and we affirmed.

in

court,

Sentencing Guidelines, sentenced Blanco

months in prison.

Cir. 1989).

The appellant, Alfonso Blanco, pleaded

to 84

Blanco appealed, challenging the sentence,

United States v. Blanco, 888 F.2d
_____________
______

907 (1st

In 1992
Fact

Blanco filed a

Pursuant

Pursuant

to

to
28

FRCP

32

United

district court denied

pro se "Motion for

______
and

Findings of

Modification

States Code

Section

the motion, and this

of

Sentence

2255."

The

appeal followed.

We affirm.
Blanco's

primary

"involuntary" because
counsel

--

claim

is that

his

guilty

he received ineffective

specifically,

because

his

plea was

assistance of

lawyer

mistakenly

assured him that, if he pleaded guilty, he would receive only

a

twenty-seven

divides his

that where

counsel,

prison

sentence.

brief into separate sections

and ineffective
clear

month

assistance, the
a

Although

on involuntariness

Supreme Court

defendant pleads

"the voluntariness of

Blanco

guilty

has made

it

on advice

of

the plea depends

on whether

counsel's advice 'was within the range of competence demanded

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of attorneys in criminal cases.'"

52, 56

(1985) (quoting McMann

______

Hill v. Lockhart, 474 U.S.

____
________

v. Richardson, 397
__________

U.S. 759,

771

(1970)).

Accordingly,

involuntariness

we

and ineffective

will

treat

assistance

Blanco's

arguments as

unit, focusing on the adequacy of counsel's advice.

In

Hill v.
____

Lockhart, the
________

clear that

the two-part

ineffective

assistance

Supreme Court

also

made it

standard for

evaluating claims

of

of

first

in

counsel,

announced

Strickland v. Washington, 466 U.S. 668 (1984), applies to the

__________
__________
guilty-plea process.
ask: (1)

Hill, 474 U.S.

____

whether counsel's

competence demanded of
whether the

counsel's

advice was

within the

"prejudice."

defendant]

would

would have insisted on

must

range of
and (2)

Prejudice,

"a reasonable probability that,

errors, [the

guilty and

The court

attorneys in criminal cases,

defendant suffered

this context, means

at 57.

in

but for

not have

pleaded

going to trial."

Id. at
___

59.
A

number of

courts have

render ineffective
about whether
inaccurate

held that

assistance if,

to plead

while

guilty, the

prediction about

the

a lawyer
advising a

lawyer merely

expected

does not
client
makes an

sentence.

See,
____

e.g., United States v. Arvanitis, 902 F.2d 489, 494 (7th Cir.
____ _____________
_________
1990); United States v.
______________
1989); United States
_____________
1989).

Cf.

Iaea v.

Sweeney, 878 F.2d

_______

68, 69

v. Turner, 881 F.2d 684,

______
Sunn,

800 F.2d

861 (9th

(2d Cir.

687 (9th Cir.

Cir.

1986)

___

____

____

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(though "mere inaccurate prediction" would not be ineffective

assistance, lawyer's "gross mischaracterization of the likely
outcome,"
effects

combined
of

going

with
to

erroneous

trial,

fell

advice

about

"below

the

possible
level

of

competence required of defense attorneys").

We

need

not

determine whether

the

lawyer's

lack of

clairvoyance here fell below the level of competence required

of

defense

allegations

attorneys,
were

requirement.

because we

insufficient

to

conclude

that

Blanco's

satisfy

the

prejudice

Blanco never even told the district court that,

but for counsel's

mistake, he would have

pleaded not guilty

and insisted on going to trial, Hill v. Lockhart, 474 U.S. at

____
________
60,1

and he

has given

us no

reason to

believe that

the

faulty estimate of his sentence might actually have "affected

the outcome of

the plea process" in

that way.

Id.
___

at 59.

The trial judge told Blanco in no uncertain terms at the plea

hearing

that he

would

not be

sentence

until

after
_____

the

completed,
bound

that in passing

able

to determine

presentence

report

sentence the court

Blanco's
had

been

would not be

by the prosecutor's recommendation, and that the court

could even, in appropriate circumstances, depart upwards from

the Sentencing Guidelines range.
he

understood these conditions.

Blanco told the court that

He

then admitted his guilt

____________________
1. Blanco made this
appellate brief.

assertion for

the first

time in

his

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under oath (and even today does not deny it), and received
sentence which, though

longer than his lawyer's

prediction,

still was substantially shorter than the sixty-year statutory

maximum about

which the

court had also

warned him.

These

facts vitiate any contention that Blanco relied solely on his

lawyer's optimism
that he

in deciding

whether to

plead guilty,

or

would have pleaded not guilty had he received a more

pessimistic (and accurate) estimate from counsel.

Blanco says that

assistance
According

by failing

to prepare

also rendered
adequately

ineffective
for a

trial.

to Blanco, the lawyer neither conducted a pretrial

investigation
A

his lawyer

nor filed all the "required" pretrial motions.

claim of ineffective preparation requires the Section 2255

petitioner to

make

facts or defenses
been prepared."
1194 (E.D.Pa.

"specific

allegations

'the

which counsel would have uncovered' had he

United States v. Johnson,
_____________
_______

1986) (quoting

lawyer's inaction

"precluded the

defense."

624 F.Supp. 1191,

United States
_____________

F.Supp. 968, 972 (E.D.Pa. 1979)).

entrapment

concerning

v. Thomas,
______

470

Blanco says only that his

mounting

of an

effective

This allegation, however, is undone by

(1) Blanco's failure to state any facts which would show that
_____
the lawyer could have come
he

worked harder,

and

(2)

up with an entrapment defense had

the

lawyer's

without contradiction in Blanco's presence at

statement,

made

the sentencing

hearing, that "[a]fter reviewing the evidence, after speaking

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with Mr. Blanco

at great length .

. . we realized

that [an

entrapment defense] was to no avail."

Finally, Blanco claims that the district
Fed.

R. Crim. P. 32 when it sentenced him.

court violated
Rule 32(a)(1)(A)

requires the trial court to "determine that the defendant and

defendant's
discuss

counsel have

the

had the

presentence

court imposes

opportunity

to read

and

before

the

investigation report"

sentence.

Blanco says that the district court

did not satisfy this

requirement because it never

(1)

read

whether he

discussed it

had

the report,

with his lawyer,

challenge any facts in

F.2d 1169, 1174

it.

(2)

whether he

and (3) whether he

See
___

asked him
had

wanted to

United States v. Rone,

_____________
____

(7th Cir. 1984) (requiring

743

sentencing court

to ask those three questions).

Unlike

the

Seventh

Circuit,

this

court

has

never

demanded that the district court comply with Rule 32(a)(1)(A)

by

asking

precedent
abundantly

such
in

specific

this

clear

questions.

circuit
from

the

has

Rather,

directed

sentencing

that

hearing

"binding
if

it

that

is
both

defendant and his counsel are familiar with the report, a new
sentencing hearing will
failed

to

directly

inquire whether

opportunity to review the

Manrique, 959 F.2d
________

not be mandated,

report. . .

the
."

even if the

court

defendant

had an

United States
_____________

1155, 1157-58 (1st Cir. 1992).

v.

See also
________

United States v. Serino, 835 F.2d 924, 931 (1st Cir. 1987).
_____________
______

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According to the transcript of the sentencing hearing in

this case, the district court certainly had "abundant" reason
to determine
presentence

that Blanco's lawyer had received

investigation report.

and read the

The lawyer

stated

his

objections to the report so specifically as to leave no doubt

of his familiarity with its contents.
Although the

discussion at

not reveal to the district

presentence report, we
motion
and

his

tells us that
counsel

Report prepared

the sentencing

hearing did

court whether Blanco had seen the

______

know that

he did:

his Section

"[p]rior to sentencing

reviewed

the

2255

the Petitioner

Pre-sentence

Investigation

by the United States Probation

Office."

In

similar circumstances, this court recently found no violation

of Rule

32(a)(1)(A), reasoning

that "[a]s

the record

well

establishes that defense counsel was intimately familiar with

the [presentence
counsel

report], we

did not discuss

will not

assume that

so critically important

defense

a document

with

his

client,

dereliction."

especially

United States
_____________

since

appellant

v. Cruz, 981
____

claims

no

F.2d 613, 619-20

(1st Cir. 1992).

Even if the district court did violate Rule 32(a)(1)(A),
its

lapse is not

The Supreme Court

ask a

corrigible in this

has held that a trial

defendant represented

anything to say

collateral proceeding.

by an

court's failure "to

attorney whether he

before sentence is imposed is

has

not of itself

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an error

of the

character or magnitude

writ of habeas corpus."

428 (1962).
F.2d 31,
v.

See also
________

cognizable under

Hill v. United States, 368 U.S. 424,

____
_____________
Padilla Palacios v. United States, 932
________________
_____________

36 n.8 (1st Cir. 1991).

United States was referring to

_____________

The Supreme Court in Hill

____
the trial court's general

duty, under Rule

32(a)(1)(C), to give a pleading defendant a

chance to

speak

before sentencing,

principle

also suits

the court's

but we

think that

more specific

the

obligation

under

Rule

whether he

32(a)(1)(A).
has had the

The

failure to

ask

a defendant

opportunity to read and

discuss the

presentence

investigation report, like the failure to hear a

defendant's

statement in mitigation

error

which

in

itself

constitutional.
inherently

It

is

of his sentence,

"is

neither

not

is an

jurisdictional

fundamental

defect

nor
which

results in a complete miscarriage of justice, nor

an omission inconsistent with the rudimentary demands of fair

procedure."

Hill v. United States, 368 U.S. at 428.

____
_____________

The Supreme Court in Hill left open the possibility that

____
Section 2255
Rule

32(a)

relief might
occurred

circumstances."
in mitigation

Id.
___

"be available if

in the

context

of

a violation

of

other aggravating

The underlying concern is "that matters

of sentence

fairly presented

to a

sentencing judge prior to rendition of final sentence."

Katz
____

v. King, 627 F.2d

____
v.

United States,
_____________

should be

568, 576 (1st Cir. 1980).

313 F.2d

6, 9-10

-8-

Thus, in Green
_____

(1st Cir.

1963), this

court vacated the

petitioner

denial of a Section 2255

claimed that

he

had been

motion where the

denied

his right

to

address the court before sentencing, and that as a result the

court

did

not

[petitioner's]

learn
counsel

"of

several

which

would

impressions implanted in the mind

matters
have

unknown

corrected

to

false

of the court by remarks of

the assistant district attorney."

Blanco cannot build
when he reviewed the

upon this rock.

to

involved, and

to the

decision not to

Guidelines

adjustment

responsibility.2
the

court).

Since

the district

the amount

The lawyer

district court

tells us that,

presentence report with his

registered objections

Sentencing

He

(and

lawyer, he

of cocaine

reportedly

give him

a two-level

for

acceptance

presented these objections

later, on

direct appeal,

of
to

to this

the "matters in mitigation" were presented to

court

before it

"aggravating circumstances"

passed sentence,

that might warrant

we find

no

Section 2255

relief.
Affirmed.
_________

____________________
2.
the

Blanco also says that he objected to the manner in which

presentence
report
"inaccurately
portrayed
his

involvement in the offense activity."

However, he never
described how the report was inaccurate, nor stated the
___
factual objections he might have presented to the district
court had he been given the opportunity.
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