Professional Documents
Culture Documents
Marino v. United States, 1st Cir. (1993)
Marino v. United States, 1st Cir. (1993)
_______________
James H. Leavey, Assistant United States Attorney and Edwin
________________
_____
J. Gale, United States Attorney on brief for respondent.
_______
____________________
July 30, 1993
____________________
PER CURIAM.
___________
Petitioner Marino
to
distribute
and
841(a)(1),
attempting
hundred kilograms
U.S.C.
2
to
possession
or more
with
intent
intent
of marijuana
to
distribute one
in violation of
(Count III).
Marino
to
possess with
government pursuant to
to
and
for
conspiracy
of 21 U.S.C.
distribute
was indicted
entered a
21
18 U.S.C.
plea agreement
with the
Count III of
a reference
quantity of
marijuana involved.
For
its
minimum sentence
hearing.
under
Count
III
at
sentencing
Marino
the
recommend
U.S.C.
United
______
Subsequently,
court in
its opinion
affirming Marino's
sentence.
-22
I
I
his motion
hearing.
that
the district
without the
benefit
court
of an
erred
in
evidentiary
explanation
was provided
"paradoxical"
advice,
evidentiary hearing.
the following:
to
explain
the
The
court
his
trial
should
have
counsel's
held
an
was
because the jury would not believe his story that he was only
interested
in
Subsequently,
purchase
purchasing
counsel advised
claim to
statement, and
one
of
marijuana.1
Marino to give
the Probation
to repeat it
pound
Department
under oath
his one-pound
in a
at the
prepared
presentence
evidentiary hearing.
Marino followed counsel's advice.
did not believe Marino's story, and found instead that Marino
was involved in
a transaction which
involved more than 100 kilograms of a
____________________
1.
27-29.
first, Marino's
Marino
base offense
level was
26; second,
because he only
pound
Marino, 936
______
of marijuana; and
with respect to
obstruction of
one
added a two-level
justice, finding
that
statement of acceptance
of responsibility.
This court
32.
Marino now claims
possible
consequences
of
to
advised of the
the
Probation
third-party witnesses
the
ineffective
district court
assistance
of
with
hearing, he
He alleges that he
a prima
_____
counsel, and
facie
_____
that
case of
the district
We disagree.
-44
is entitled to
no relief."
Rule 4(b) of
the
appears from
the face of the motion and any annexed exhibits and the prior
proceedings in
relief in the
for
its
summary
dismissal
and
cause
the
entitled to
make an order
movant
to
be
notified."
United States v.
_____________
Rodriguez-Rodriguez, 929 F. 2d
___________________
747, 749-50
because it resulted
offense
level,
assistance
Petitioner
below
that his
an
of
in an increase
constituted,
counsel.
must show
objective
counsel's inconsistent
The
both that
standard
-55
in petitioner's
ipso
____
facto,
_____
legal
standard
ineffective
is
counsel's performance
of
reasonableness
and
clear.
fell
that
prejudice
resulted.
687 (1984).
645, 648
(1st Cir.
examined
"not in
1990).
Counsel's
hindsight, but
(1992).
what the
lawyer
938
Ct. 986
quite wide.
the
based on
be
implemented."
performance must
Supreme
has
noted,
"[j]udicial
Therefore, as
scrutiny
say that
defense counsel's
of
Id.
___
performance
[I]n making
decisions regarding
the
propriety of having Petitioner testify at
a trial and at a presentence evidentiary
hearing, defense counsel had to evaluate
two very distinct sets of circumstances.
In deciding that Petitioner should not
testify at trial, defense counsel had to
take into account the considerable wealth
of government evidence. . . .
In
deciding to permit Petitioner to testify
at his presentence evidentiary hearing,
however, defense counsel was required to
view the government's evidence in a much
different light. Although the government
possessed
an
abundance
of evidence
linking
Petitioner
with
the
drug
transaction generally, the government's
evidence concerning the specific amount
involved in the transaction was less
persuasive. See United States v. Marino,
___ _____________
______
936 F.2d at 28[-29]. Given the strength
government's
evidence concerning
the
amount of marijuana, it cannot be said
that defense counsel's advice concerning
either matter fell below an objective
standard of reasonableness.
Marino v.
______
(D.
that
different stages
of a
petitioner's
motion
within its
without
Nothing would
understanding of the
respect to
prosecution is
court acted
at 4
advice with
The district
hearing.
have
per se
___ __
of
been
added
issue by holding a
issue at
unreasonable.
discretion in
benefit
an
an
denying
evidentiary
to the
court's
hearing, especially
2255 motion heard the
prejudiced
by
that
"[p]rejudice in
the case
mathematical terms.
63
months had
advice.
at bar
the defendant
taking the
disagree.
been
witness stand
the
As
in
given consistent
advice
Fatico hearing."
______
to gain by testifying.
the
that
readily identified
at the
2-8
claims
the
to
is
Petitioner
We
Had
range for
court
below held,
"[g]iven
the
-77
tremendous
would
decided
counsel's lack of
not
to
testify
Marino v.
______
court
advice
at
the
United States,
_____________
sum, petitioner's
allegations,
to the
extent
they
under
section
2255, Rodriguez-Rodriguez,
___________________
to relief"
929 F.2d
at 749;
at 740-50.
Hence, an
evidentiary hearing
was not
required.
II
II
Amendment of the Indictment
Amendment of the Indictment
___________________________
Count III of Marino's original indictment stated:
The Grand Jury further charges:
That on or about December 19, 1989, in
the
District
of Rhode
Island
and
elsewhere, defendant NICHOLAS R. MARINO
did attempt to possess with the intent to
distribute 100 kilograms or more of a
mixture
or
substance
containing
a
detectable
amount
of
marihuana,
a
Schudule [sic] I Controlled Substance in
violation of Title 21, United States
Code,
Sections
841(a)(1)
and
(b)(1)(B)(vii).
All in violation of Title 21, United
States Code, Section 846 and Title 18,
United States Code, Section 2.
As part of his plea
-88
that the
attempted to
which
he
been
issue
presentence
of marijuana
had
sentencing
amount
charged,
to
be
United States v.
______________
Barnes, 890
______
which Marino
had
an element of the
crime with
but
it
was
court
in
rather
determined
evidentiary hearing
that
by
the
prior to
F.2d 545,
sentencing.
551 n.6
See
___
(1st Cir.
mixture or
substance
detectable
violation of
Title
21,
United
841(a)(1)
and (b)(1)(B)(vii)."
___________________
reference
to a violation of
deleted.
minimum
kilos
containing a
That
detectable
more
It
is
of
amount
mixture
of
Code,
unclear
Sections
why
the
States
of
or
mandatory five-year
841(a)
involving "100
substance
marijuana."
21
containing
U.S.C.
841(b)(1)(B)(vii).
Although
a hypertechnical
reading of
the amended
marijuana, we decline
-99
to so read
the record.
It
to an attempt to possess
one
pound of
government
amenable
undetermined quantity
It is
to
his
likewise
clear that
plea
guilty
of marijuana,
of
and that
In
the course
to plead guilty
marijuana.
was
transcript of
of
the plea
understood:
the
to
an
the issue
of
at a presentencing
colloquy, the
(1) the
court
maximum penalty
for the crime with which he was charged; (2) that the penalty
would depend upon the amount
to purchase;
would determine
that
amount.
Marino now claims that the court order deleting the
phrase
"100 kilograms
indictment was an
case.
Marino
involved is
U.S.C.
not an
841(a).
of"
from Count
or more
III of
the
indictment, and
that the
element of an
quantity
of
offense charged
drugs
under 21
because it
of the
-1010
Petitioner's
claims are
without merit.
As
this
F.2d 956,
Winter,
______
964
663 F.2d
(1st Cir.)
1120,
1139-40
indictment by
or more of"
charged an
which
(quoting
(1st
Cir.
the removal of
Indeed,
the reference
been charged:
to "100
offense with
possession with
cert.
_____
remaining allegations
marijuana.
1981)),
v.
offense.
United States
_____________
any quantity of
___
it is an issue to be
determined by the
n.6.
Marino's
deleted
from the
contention
that
indictment is
vital
rebutted by
information
was
the fact
that
as to
applicability
-1111
of the
Marino on
enhanced
penalty provision.
had
included the
original
or more"
language in
the
made it
of sentencing.
It
cannot be
and demonstrated
an understanding
amendment
have
would
for
the
of the
sentencing
implications that
process.
The
amendment to the indictment was proper and did not divest the
district court of jurisdiction.
III
III
Conclusion
__________
Finding
no error in
the judgment of
the district
See 1st
___
-1212