USCA1 Opinion

June 10, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2150
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
THOMAS FIGUEROA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
__________________________
____________________
Before
Torruella, Selya and Boudin,
Circuit Judges.
______________
____________________
Thomas Figueroa on brief pro se.
_______________
Donald K. Stern, United States

Attorney,

and

Dina

Mich

_________________
___________
Chaitowitz, Assistant United States Attorney, on brief for appellee
__________
____________________
____________________

Per Curiam.
__________
denial of

Thomas Figueroa

his motion under 28

U.S.C.

aside, or correct his sentence.

conspiracy and
500 or

97

months.

conviction and his

F.2d

1446 (1st

(1993).

2255

se from

to vacate, set

intent to distribute

cocaine, petitioner received

This court

sentence.

Cir. 1992),

the

Following his conviction for

attempt to possess with

more grams of

term of

appeals pro

thereafter

a prison

affirmed

his

United States v. Figueroa, 976

_____________
________
cert. denied,
____________

113 S.

Ct. 1346

Petitioner now raises three issues, two relating to

his sentence and a third involving his underlying conviction.

He first
calculated

contends that

the

responsible

quantity

for purposes

identical contention
and so
v.

the
of

district court

cocaine

of sentencing.

on direct

United States, 965 F.2d

_____________

here.

his role in

was

rejected this
at 1460-61,

See, e.g., Barrett

___ ____ _______
(1st Cir. 1992)

will not be reviewed

again

second claim involves the determination as

the offense.

two levels

participant

under

on the

or

court reduced his offense

that he

3B1.2(b).

was a

Petitioner

under

now

alternatively

3B1.2(a) for "minimal"

that

his

ineffective in failing to seek such a reduction.

this regard that

"minor"

clearly erroneous in declining to

impose a four-level reduction

participation,

The
ground

U.S.S.G.

asserts that the court was

in

he

2255 motion).

Petitioner's

level by

We

1184, 1190 n.11

(issues decided on direct appeal

to

which

appeal, see id.

___ ___

will not revisit the issue

by way of

for

improperly

his alcoholism was

counsel

was

He contends

so disabling during

the relevant
than

period that he

tangential

contrary,

the

involvement
evidence

revealed especially
he

had

with

was incapable of

the

in

of

the conspiracy.

petitioner's

in two recorded
government

anything more

telephone conversations

informant

more considerable than he

counsel

did, in

and

reduction be
the

suggests.

fact, initially

applied.

court, and

the

participation--as

as

described in our earlier opinion--demonstrates

was

To

otherwise

that his role

We

also note that

propose that

a four-level

We find no clear error on the part of

no substandard

performance on

the part

of

counsel.
Petitioner's
To

the

final argument

extent

he

manipulation," see,
___
51, 55 (1st
reject

is

alleging

for

as the district
the reasons

appeal of a codefendant.

to decipher.

"sentencing

e.g., United States v.

____ _____________

Cir. 1993),

such claim

is difficult

factor

Brewster, 1 F.3d
________
court assumed,

recited

in the

we

recent

See Figueroa v. United States, 19

___ ________
______________

F.3d 7, No. 93-2028, slip op. at 3-4 (1st Cir. 1994) (table).
To

the extent

he

is alleging

governmental entrapment

(or

ineffective assistance for failure to pursue such a defense),

it

suffices

suggestion

to note
of

predisposition."

that

the

"government

record utterly
inducement"

or

belies

any

"lack

of

United States v. Gifford, 17 F.3d 462, 468

______________
_______

-3-

(1st Cir. 1994) (citing Jacobson v. United States, 112 S. Ct.

________
_____________
1535

(1992)).

themselves

Indeed,

the two

demonstrate that

reluctant participant.
counsel improperly
that petitioner

To

recorded conversations

petitioner
the

was anything

extent he

that

dissuaded him from testifying, we observe

personally disclaimed any interest

United States,
______________

but a

is arguing

so in response to inquiries from the court.

v.

987

(evidence that petitioner

F.2d

48,

52-53

in doing

See, e.g.,
___ ____
(1st

Lema
____

Cir.

1993)

"knowingly and voluntarily" waived

right to testify defeated ineffective assistance claim).

to the extent

by

he is seeking to vacate his

And

conviction due to

newly discovered evidence, we reject the claim on the grounds

that it was not advanced

below and is in any

event entirely

conclusory.
Finally,

as

each

of

petitioner's

claims

possessing the requisite factual specificity) was

(where

subject to

refutation on the basis of the existing record, the court was

justified in dismissing the petition without a hearing.

See,
___

e.g.,
____

United States v. McGill, 11 F.3d 223, 225-26 (1st Cir.

_____________
______

1993).
Affirmed.
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