Escolar Documentos
Profissional Documentos
Cultura Documentos
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.
______________
___________________
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
guilty
it dropped
plea.
The
one count of
those charges
district
and we affirmed.
in
court,
months in prison.
Cir. 1989).
to 84
907 (1st
In 1992
Fact
Blanco filed a
Pursuant
Pursuant
to
to
28
FRCP
32
United
Findings of
Modification
States Code
Section
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
twenty-seven
divides his
that where
counsel,
prison
sentence.
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
on whether
-2-
v. Richardson, 397
__________
U.S. 759,
771
(1970)).
Accordingly,
involuntariness
we
and ineffective
will
treat
assistance
Blanco's
arguments as
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
whether counsel's
competence demanded of
whether the
counsel's
advice was
within the
"prejudice."
defendant]
would
must
range of
and (2)
Prejudice,
errors, [the
guilty and
The court
defendant suffered
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.
68, 69
800 F.2d
861 (9th
(2d Cir.
1986)
___
____
____
-3-
combined
of
going
with
to
erroneous
trial,
fell
advice
about
"below
the
possible
level
of
need
not
determine whether
the
lawyer's
lack of
defense
allegations
attorneys,
were
requirement.
because we
insufficient
to
conclude
that
Blanco's
satisfy
the
prejudice
and he
has given
us no
reason to
believe that
the
that way.
Id.
___
at 59.
hearing
that he
would
not be
sentence
until
after
_____
the
completed,
bound
that in passing
able
to determine
presentence
report
Blanco's
had
been
would not be
____________________
1. Blanco made this
appellate brief.
assertion for
the first
time in
his
-4-
under oath (and even today does not deny it), and received
sentence which, though
prediction,
which the
warned him.
These
in deciding
whether to
plead guilty,
or
by failing
to prepare
also rendered
adequately
ineffective
for a
trial.
investigation
A
his lawyer
petitioner to
make
facts or defenses
been prepared."
1194 (E.D.Pa.
"specific
allegations
'the
1986) (quoting
lawyer's inaction
"precluded the
defense."
United States
_____________
entrapment
concerning
v. Thomas,
______
470
of an
effective
(1) Blanco's failure to state any facts which would show that
_____
the lawyer could have come
he
worked harder,
and
(2)
lawyer's
statement,
made
the sentencing
-5-
at great length .
. . we realized
that [an
court violated
Rule 32(a)(1)(A)
counsel have
the
had the
presentence
court imposes
opportunity
to read
and
before
the
investigation report"
sentence.
(1)
read
whether he
discussed it
had
the report,
it.
(2)
whether he
See
___
asked him
had
wanted to
743
sentencing court
the
Seventh
Circuit,
this
court
has
never
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
not be mandated,
report. . .
the
."
even if the
court
defendant
had an
United States
_____________
v.
See also
________
United States v. Serino, 835 F.2d 924, 931 (1st Cir. 1987).
_____________
______
-6-
The lawyer
stated
his
discussion at
his
tells us that
counsel
Report prepared
the sentencing
hearing did
know that
he did:
his Section
"[p]rior to sentencing
reviewed
the
2255
the Petitioner
Pre-sentence
Investigation
Office."
In
32(a)(1)(A), reasoning
that "[a]s
the record
well
report], we
will not
assume that
so critically important
defense
a document
with
his
client,
dereliction."
especially
United States
_____________
since
appellant
v. Cruz, 981
____
claims
no
lapse is not
corrigible in this
defendant represented
anything to say
collateral proceeding.
by an
attorney whether he
has
not of itself
-7-
an error
of the
character or magnitude
See also
________
cognizable under
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
discuss the
presentence
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
32(a)
relief might
occurred
circumstances."
in mitigation
Id.
___
"be available if
in the
context
of
a violation
of
other aggravating
of sentence
fairly presented
to a
Katz
____
United States,
_____________
should be
6, 9-10
-8-
Thus, in Green
_____
(1st Cir.
1963), this
claimed that
he
had been
denied
his right
to
did
not
[petitioner's]
learn
counsel
"of
several
which
would
matters
have
unknown
corrected
to
false
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,
registered objections
Sentencing
He
(and
lawyer, he
of cocaine
reportedly
give him
a two-level
for
acceptance
later, on
direct appeal,
of
to
to this
before it
"aggravating circumstances"
passed sentence,
we find
no
Section 2255
relief.
Affirmed.
_________
____________________
2.
the