USCA1 Opinion

July 20, 1993

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2326
NESTOR FERNANDO-MANRIQUE,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
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____________________
Nestor Fernando-Manrique on brief pro se.
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A. John Pappalardo, United States Attorney, and Jeffrey A. Loc

__________________
______________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
__________
appeals

from

the

sentence under 28
the record,
decision.

denial of

2255.

the parties'

briefs

on

the

court's judgment
has

stated.

understandably,

given

pleadings, failed to

the

set

aside his

We have carefully reviewed

and the
and

23-page

district
diligent

court's
analysis

Memorandum and

appellant's claims, we affirm

for essentially
However,

Fernando-Manrique

motion to

detailed

Judge Skinner's

which disposes of most of

Nestor

his

U.S.C.

Based

contained in

Appellant

the
prolix

the reasons

Order
the

Judge Skinner

Memorandum

and

nature

appellant's

identify two issues.

of

Order

We therefore add

the following.
The first claim
any

information

cocaine involved

is that the PSI

concerning

the amount

in appellant's offense.

failed to contain
or

purity of

the

Appellant alleges

that due to the omission of this information from

the PSI he

has been denied hearings before the Parole Commission on four

occasions.

The

Court of

Appeals

for

the Third

Circuit

rejected a similar claim concerning an omission in the PSI of

any information concerning the drugs involved in the

offense

in United States v. Katzin, 824 F.2d 234 (3d Cir. 1987).

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______
court stated:
In this case, Katzin objects that
because the
PSI never included
the
disputed facts,
the
court
had
no
opportunity to make findings.
But the
very fact that the court did not even

have the information available to it

demonstrates that it did not rely on the
disputed facts in making the sentencing
decision.
This lack of reliance means
that there was no prejudice to the actual
sentencing decision. In addition, there
could be no misleading of parole or
prison officials because the disputed

The

information did not come to them with any

indication of judicial approval.
Id. at 239-40.
___
sentencing

Because appellant cannot demonstrate that the

court

establish that

relied

he was

on

prejudiced.

without remedies, however.

may dispute
in

the

Board.

See id.
___ ___
The

listed

is not

second

claim

agrees, that
PSI

appellant's Offense
estimate of 48

cannot
left

Parole Commission uses

28 C.F.R.
to the

2.19(c).

He

National Appeals

2.26.
is

that

concerning

Specifically,

in the

See
___

parole decision

information

guidelines.1
government

Appellant

any information that the

may appeal a

erroneous

he

Under the parole regulations, he

setting his parole status.

also

information,

the

the

PSI

estimated

appellant points

the

parole

out, and

the

Salient Factor

Score of

Four

This score,

combined

with

is wrong.

Severity rating of Five,

to 60 months

contained

resulted in an

imprisonment before release

on

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1. The Parole Commission uses two variables to set probable
parole ranges. The first is the "Offense Severity" and the
second is the "Salient Factor Score." See 28 C.F.R.
2.20.
___
This score represents a defendant's prior criminal history
and predicts the risk of parole violation.
Id.
The
___
probation officer combines the two scores to arrive at an
estimate relative to how much time an inmate probably will
serve before being released on parole.
-3-

parole.

Rather, due to the fact that appellant

convictions,

the proper Salient

would reduce the

has no prior

Factor Score is

customary time served before

to 36 months.

Appellant essentially

relied on the

48-60 month estimate in

Ten.

This

release to 24

argues that the

judge

imposing the ten-year

sentence.

Applying the correct Salient Factor Score

appellant

calculates, should

have resulted

in a

of Ten,
five-year

sentence.
This
sentence

claim fails.

based

magnitude" or

on

"misinformation

"materially untrue"

violate due process,

447

(1972),

not

collateral attack.
178,

Although it
of

is
a

type

of

error

is

constitutional

assumptions

United States v. Tucker,

_____________
______

every

true that

of fact

may

404 U.S. 443,

cognizable

on

See United States v. Addonizio, 442 U.S.

___ ______________
_________

186 (1979) (section 2255 relief based on errors of fact

available only

where such

and are essential to the

itself'") (citation

errors are fundamental

"`validity of the legal

omitted).

in nature
proceeding

In United States v. Dean, 752

_____________
____

F.2d 535 (11th Cir. 1985), cert. denied, 479 U.S. 824 (1986),
_____ ______

the court held that Addonizio "completely foreclose[d] Dean's

_________
argument that

the sentence was `illegal'

sentencing judge
would

likely

merely because the

was mistaken about the length

serve

prior to

parole."

752

of time Dean
F.2d at

543

(footnote omitted).
The

Court's

could not have

message

in

Addonizio
_________
been stated more clearly.
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A sentence is
not "illegal"
simply
because the original sentencing judge
mistakenly
believed that
the Parole
Commission would release the defendant
before the end of the defendant's full
sentence. Whether the sentencing judge's
belief was based on the judge's own
knowledge of the parole system or on a
________
prediction contained in the presentence
_________________________________________
report is irrelevant.
____________________
Id. at 544 (emphasis added).
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In any event, what is fatal to appellant's claim is
the fact that the district court
Factor

did not rely on the Salient

Score at all in its sentencing determination.

At the

hearing, the court stated that it based the ten-year sentence

on

the

recommendation

recommendation is
abundance

of

Department.

obtained

Upon review,

it is

no reliance

range, much less

was

in

released to

caution, we

officer placed

reference

not

contained

on the
made to

the

PSI.

the parties;
it

out of

from the

plain that

This
an

Probation

the probation

on the estimated

parole release

Salient Factor Score.

Indeed,

the

"Sentencing

Data" sheet

no

which

contains this information.

Appellant's claim that Egbert
assistance of counsel
not

bringing

the

court's

attention

prevail

on such

in violation of the Sixth Amendment by

erroneous
falls
a

provided ineffective

Salient Factor

short for

claim, appellant

Egbert's

professional

standard

of

conduct

reasonableness

fell
and
___

the

Score

same

to

the

reason.

To

must demonstrate
below
that

his

an

that

objective
"deficient

-5-

performance" had a detrimental

effect on the judgment.

See
___

Strickland
__________

v. Washington,
__________

466

U.S. 668,

687, 691

(1984).

Because the court did not rely on the mistaken Salient Factor
Score in arriving at a sentence, Egbert's failure to raise it
could not have prejudiced appellant.
It is,
Salient

of course, possible

Factor Score

Parole

Board.

the government

could

that the error

complicate

Having received

in the

matters before

a sentence twice

recommended, we think that

as long as

the appellant has

suffered enough misfortune without

adding to it the

any further misunderstanding about

his prior history.

the

government

has conceded

Salient Factor

Score is

direct

copy of

Clerk

that a

directly to

in

Ten,

the

its

the

brief that

a favorable

risk of
Since

the

true

figure, we

will

this opinion

be transmitted

Parole Board

with a

by the

letter drawing

attention to this paragraph.

Based

on

district

court

is affirmed.
________

appendix

filed by

Georgeau's

order

foregoing,
We

appellant;

We also

refusing

the

judgment

strike the

it contains

grand jury appearance

record below.
our

the

of

supplemental

a transcript

which was not

the

of

part of the

deny appellant's motion to reconsider

his

request

abeyance.
It is so ordered.
________________

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to

hold

his

appeal

in