USCA1 Opinion

February 13, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1765

ANTONIO MANUELA-LAZU,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Stahl and Lynch, Circuit Judges.
______________
____________________

Antonio Manuela Lazu on brief pro se.

____________________
John C. Keeney, Acting
_______________
Van Vliet,
__________
Attorneys,

Chief,

Assistant Attorney

Hope P. McGowan,
_________________

Narcotic and

Dangerous Drug

and

General, Theresa M
_________

John J. Farley,
________________

Section,

U.S. Department of Justice, on brief for appellee.

____________________

Tr

Criminal Divisi

____________________

Per Curiam.
__________

Defendant-appellant Antonio

Manuela-

Lazu appeals

his motion

from the district court's

under 28 U.S.C.

correct his sentence.

Manuela

charging

conspiring

to

guilty

him

possess

to

and

with

plea

agreement,

one count

numerous

intent

kilograms of cocaine and 1,000

government and

to vacate, set

to

Manuela

was

kilograms of

application

defendant

of

would

U.S.S.G.

distribute

responsible

less

the

39-count

for the purposes

distribution of "more than

which

with

10,000

kilograms of marihuana.

Manuela stipulated,

that

of

co-defendants

importation or

than 500

aside or

We affirm.

pleaded

indictment

2255

summary dismissal of

otherwise

1B1.3."

The

of the

for

the

150 kilograms but

cocaine, including

be

The

conduct for

accountable

plea

by

agreement,

consistent with the stipulation, provided that the applicable

base offense level was 38.

The sentencing court accepted the

recommended base offense level and, accordingly, arrived at a

guideline sentencing range of

sentenced him to 188

188 to 235 months.

months' imprisonment.

Manuela

The court

did not

appeal.

In his

2255 motion, Manuela claims

court's failure to make

quantity of drugs for

violated due

issue

process.

that the district

an independent finding regarding the

which he was individually responsible,

"[F]ailure to

[except ineffective

raise a constitutional

assistance of counsel]

-2-

on direct

appeal will bar raising the issue on collateral attack unless

the defendant

can

prejudice." Knight
______

show cause

for

the failure

v. United States,
_____________

and

37 F.3d 769,

actual

774 (1st

Cir. 1994).

Manuela has failed to identify

law or any

process

other "cause" for

argument

on

direct

unnecessary to address the

a change in the relevant

his failure

appeal.

to raise his

Accordingly,

it

due

is

prejudice prong of the cause-and-

prejudice

test.

fundamental

Nor

miscarriage

has

of

Manuela

justice

dismissal of his due process claim.

he entered

demonstrated

will

from the

He has not claimed that

the stipulation involuntarily or

plea is in any way defective.

result

that

that the guilty

Moreover, the PSR reveals that

there is a reasonable factual basis for the quantity of drugs

that Manuela stipulated to.

The

affirmed.
________

summary dismissal

See U.S.S.G.
___

of

Manuela's

6B1.4.

2255 motion

is

-3-