USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1369
NICHOLAS R. MARINO,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
___________________
____________________
Before
Selya and Cyr, Circuit Judges,
______________
and Bownes, Senior Circuit Judge.
____________________
____________________
Cheryl J. Sturm on brief for appellant-petitioner.

_______________
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

1,000 kilograms or more of marijuana in violation

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

841(a)(1), (b)(1)(B)(vii) and 846, and

(Count III).

Marino

the indictment which

the specific

to

(b)(1)(A)(vii) and 846 (Count I),

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

which he pled guilty to

Count III of

had been amended to delete

a reference

quantity of

marijuana involved.

For

its

part, the government agreed to dismiss Count I and

the

minimum sentence

hearing.

under

Count

III

at

was upheld on appeal.

States v. Marino, 936 F.2d 23 (1st Cir. 1991).

______
______
filed a motion under 18

aside or correct his sentence.

denied

sentencing

Marino was sentenced to an eighty-two month term of

incarceration, which sentence

Marino

the

recommend

U.S.C.

United
______

Subsequently,

2255 to vacate, set

The district court summarily

the motion without conducting an evidentiary hearing.

Marino appeals, and, finding no error, we affirm.

The
by this

background of this case was reported in detail

court in

its opinion

affirming Marino's

Marino, 936 F.2d 23 (1st Cir. 1991).

______
only

long enough to highlight

sentence.

We therefore will pause

relevant facts in the context

of Marino's two claims.

-22

I
I

Lack of an Evidentiary Hearing

Lack of an Evidentiary Hearing
______________________________
Marino claims
denying

his motion

hearing.

that

the district

without the

benefit

court
of an

erred

in

evidentiary

Specifically, he contends that, because no rational

explanation

was provided

"paradoxical"

advice,

evidentiary hearing.
the following:

to

explain

the
The

court

his

trial

should

have

counsel's
held

advice to which Marino refers

an
was

Counsel advised Marino against going to trial

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.

The trial judge

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.

In a letter to petitioner, counsel stated:

It is obvious to me that you will not be
able to testify.
In the event you wish
to do so, however, that option is yours.
It is my strong feeling that in the event
you do testify, you would hurt yourself
more than help, and that the government
could,
quite
easily,
prove
the
allegations necessary to convict you in
Count No. III, based on your own prior
statement and the testimony of the other
defendants.
-3-

substance containing a detectable amount

of marijuana, that is, 500 pounds, that
the
deal
was,
and
as
the
tape
demonstrated, it was going to be 500
pounds at a time or maybe 1000 pounds at
a time until we got to the ultimate
amount.
So that I'm satisfied with
respect to the third count that there was
more than 100 kilos that Mr. Marino was
involved with.
That finding was upheld by this court on appeal.
F.2d at

27-29.

first, Marino's
Marino

base offense

level was

from the finding:

set at

26; second,

was not given credit for acceptance of responsibility

because he only
pound

Three consequences flowed

Marino, 936
______

acknowledged his guilt

of marijuana; and

upward adjustment for

with respect to

third, the court

obstruction of

one

added a two-level

justice, finding

that

Marino had lied at the presentence evidentiary hearing and in

his

statement of acceptance

of responsibility.

affirmed these decisions on appeal.

This court

Marino, 936 F.2d at 27______

32.
Marino now claims
possible

consequences

of

that had he been

his statement

to

advised of the
the

Probation

Department and his

testimony at the presentence

would have presented his story through

third-party witnesses

rather than testifying on his own behalf.

presented

the

ineffective

district court

assistance

of

with

hearing, he

He alleges that he

a prima
_____

counsel, and

facie
_____

that

case of

the district

court erred in dismissing his claim without the benefit of an

evidentiary hearing.

We disagree.
-44

Section 2255 provides that a petitioner is entitled

to an evidentiary hearing on
and the files and records
the prisoner

his motion "[u]nless the motion

of the case conclusively show that

is entitled to

no relief."

Rule 4(b) of

the

Rules Governing Section 2255 Proceedings in the United States

District Courts provides

that "[i]f it plainly

appears from

the face of the motion and any annexed exhibits and the prior
proceedings in
relief in the
for

its

the case that

the movant is not

district court, the judge shall

summary

dismissal

and

cause

the

entitled to
make an order

movant

to

be

notified."

This court has summarized the rule as follows:

[A] petition can be dismissed without a
hearing if the petitioner's allegations,
accepted as true, would not entitle the
petitioner
to
relief,
or
if
the
allegations cannot be accepted as true
because "they are contradicted by the
record,
inherently
incredible,
or
conclusions rather than statements of
fact."
Dziurgot v. Luther, 897 F.2d
________
______
1222, 1225 (1st Cir. 1990) (quoting Myatt
_____
v. United States, 875 F.2d 8, 11 (1st
______________
Cir. 1989)).

United States v.
_____________

Rodriguez-Rodriguez, 929 F. 2d
___________________

747, 749-50

(1st Cir. 1991).

Petitioner claims
advice,

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).

Strickland v. Washington, 466 U.S. 668,

__________
__________

See also Lopez-Nieves v. United States, 917 F.2d

___ ____ ____________
_____________

645, 648

(1st Cir.

examined

"not in

1990).

Counsel's

hindsight, but

knew, or should have known,

were made and

(1992).

what the

lawyer

United States v. Natanel,

______________
_______

1991), cert. denied, 112 S.

_____ ______

938

Ct. 986

The "range of reasonable professional assistance" is

quite wide.
the

based on

be

at the time his tactical choices

implemented."

F.2d 302, 309 (1st Cir.

performance must

Supreme

See Strickland, 466 U.S. at 689.

___ __________
Court

has

noted,

"[j]udicial

Therefore, as
scrutiny

counsel's performance must be highly deferential."

We cannot
was unreasonable.

say that

defense counsel's

of

Id.
___
performance

As the court below held,

[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

of the government's evidence connecting

Petitioner with some sort of marijuana
purchase and the
ambiguities in the
-66

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

United States, No.

_____________

R.I. February 23, 1993).

giving different

different stages

of a

petitioner's

motion

when the same

within its

without

Nothing would

understanding of the

respect to

prosecution is

court acted

at 4

Petitioner erroneously assumes

advice with

The district

hearing.

92-0503B, Mem. and Order

have

per se
___ __

of

been

added

issue by holding a

issue at

unreasonable.

discretion in

benefit

court that denied the

an

an

denying

evidentiary

to the

court's

hearing, especially
2255 motion heard the

relevant evidence at sentencing.

Even were we to accept petitioner's contention that
counsel's advice was unreasonable, we

fail to see how he was

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

base offense level would

months.

As

in

would have been 51-

given consistent

advice

Fatico hearing."
______

to gain by testifying.

the sentencing guideline

the

that

readily identified

at the

Petitioner had much

court believed him,

2-8

claims

to the Probation Department and

the

to

is

The Guideline Range

about not giving a statement

not

Petitioner

We
Had

range for

have dropped from 63-78 months

court

below held,

"[g]iven

the

-77

tremendous

reduction in sentence Petitioner stood to gain by

successfully challenging the

cannot say that
Petitioner

would

amount of marijuana, the

`but for' defense

have

decided

counsel's lack of
not

presentence evidentiary hearing."

to

testify

Marino v.
______

court
advice
at

the

United States,
_____________

No. 92-0503B, Mem. and Order at 6.

In

sum, petitioner's

allegations,

to the

extent

they

are factual, "would

under

section

not entitle petitioner

2255, Rodriguez-Rodriguez,
___________________

to relief"

929 F.2d

at 749;

and, to the extent they are conclusory, need not be credited.

See id.
___ ___

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

agreement with the government, the words

"100 kilograms or more of" were deleted

-88

from the indictment,

by order of the court, prior to his entry of a plea of guilty

to Count III.
all agreed

The petitioner, the government

that the

attempted to
which

he

been

issue

presentence

of marijuana

purchase was not

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

and the court

that

by

the

prior to
F.2d 545,

sentencing.
551 n.6

See
___

(1st Cir.

1989), cert. denied, 494 U.S. 1019 (1990).

_____ ______
After the modification, Count III of the indictment
stated that Marino "did attempt to possess with the intent to
distribute a
amount
in

mixture or

substance

detectable

of marihuana, a Schudule [sic] I Controlled Substance

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

provision provides for a

of

amount

mixture
of

Code,
unclear

Sections
why

the

841(b)(1)(B)(vii) was not also

sentence for violations

or

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

indictment could therefore lead to the conclusion that Marino

did, despite his

best efforts, plead guilty to attempting to

possess more than one hundred kilos of

marijuana, we decline

-99

to so read

the record.

the plea hearing

It

that Marino did not intend

to an attempt to possess
one

pound of

government

is clear from the

amenable

undetermined quantity

It is
to

his

likewise

clear that

plea

guilty

of marijuana,

of

and that

quantity would be determined by the court

hearing.

In

the course

determined that Marino

to plead guilty

with intent to distribute more than

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;

and, (3) that

of marijuana that he had sought

the court

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).

not constitute mere

of"

from Count

improper amendment of the

that, as a result, the

the

or more

III of

the

indictment, and

court was divested of jurisdiction in

concedes

that the

element of an

quantity

of

offense charged

He claims, however, that

drugs

under 21

the quantity did

surplusage in the indictment

because it

"notifies the accused of the exact nature of the charge," and

because "it alerts the defendant to the applicability

of the

penalty enhancement provision."

-1010

Petitioner's

claims are

without merit.

court recapitulated in United States v. Angiulo,

_____________
_______
"An indictment may not be amended
except by resubmission to the grand jury,
unless the change is merely a matter of
form," but withdrawal of a portion of the
indictment that the evidence does not
support
is
not
an
impermissible
amendment, "provided nothing is thereby
added to the indictment, and that the

As

this

remaining allegations charge an offense."

847

F.2d 956,

Winter,
______

964

663 F.2d

(1st Cir.)

1120,

1139-40

denied, 488 U.S. 928 (1988).

______
to the
kilos

indictment by
or more of"

charged an
which

(quoting
(1st

Cir.

the removal of

Indeed,

the reference

been charged:

intent to distribute marijuana.

of the crime; rather

to "100

offense with

possession with

Section 841(a) criminalizes

the possession with the intent to distribute

The quantity of

cert.
_____

remaining allegations

they charged the

Marino had originally

marijuana.

1981)),

v.

In this case, nothing was added

marijuana, and the

offense.

United States
_____________

any quantity of
___

drugs involved is not an element

it is an issue to be

judge at the time of sentencing.

determined by the

See Barnes, 890 F.2d at 551

___ ______

n.6.
Marino's
deleted

from the

contention

that

indictment is

vital

rebutted by

information

was

the fact

that

Count III of the indictment, as amended, retained a reference

to 21 U.S.C.
notice

as to

841(b)(1)(B)(vii), thereby putting

the potential

applicability

-1111

of the

Marino on
enhanced

penalty provision.
had

included the

original

Furthermore, the fact that the government

"100 kilograms

indictment, along with

or more"

language in

the plea colloquy,

the

made it

clear to defendant that the government would contest Marino's

"one pound"

story at the time

said that the

of sentencing.

It

cannot be

amendment to the indictment resulted in unfair

prejudice or surprise to Marino.

He requested the amendment,

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

court, the judgment is therefore summarily affirmed.

Cir. Loc. R. 27.1.

See 1st
___

-1212