Manrique v. United States
Manrique v. United States
Manrique v. United States
Opinion
USCA1 Opinion
July 20, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2326
NESTOR FERNANDO-MANRIQUE,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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Nestor Fernando-Manrique on brief pro se.
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A. John Pappalardo, United States Attorney, and Jeffrey A. Locke,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Appellant Nestor Fernando-Manrique
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appeals from the denial of his motion to set aside his
sentence under 28 U.S.C. 2255. We have carefully reviewed
the record, the parties' briefs and the district court's
decision. Based on the detailed and diligent analysis
contained in Judge Skinner's 23-page Memorandum and Order
which disposes of most of appellant's claims, we affirm the
court's judgment for essentially the reasons Judge Skinner
has stated. However, the Memorandum and Order
understandably, given the prolix nature of appellant's
pleadings, failed to identify two issues. We therefore add
the following.
The first claim is that the PSI failed to contain
any information concerning the amount or purity of the
cocaine involved in appellant's offense. Appellant alleges
that due to the omission of this information from the PSI he
has been denied hearings before the Parole Commission on four
occasions. The Court of Appeals for the Third Circuit
rejected a similar claim concerning an omission in the PSI of
any information concerning the drugs involved in the offense
in United States v. Katzin, 824 F.2d 234 (3d Cir. 1987). The
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court stated:
In this case, Katzin objects that
because the PSI never included the
disputed facts, the court had no
opportunity to make findings. But the
very fact that the court did not even
have the information available to it
demonstrates that it did not rely on the
disputed facts in making the sentencing
decision. This lack of reliance means
that there was no prejudice to the actual
sentencing decision. In addition, there
could be no misleading of parole or
prison officials because the disputed
information did not come to them with any
indication of judicial approval.
Id. at 239-40. Because appellant cannot demonstrate that the
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sentencing court relied on the information, he cannot
establish that he was prejudiced. Appellant is not left
without remedies, however. Under the parole regulations, he
may dispute any information that the Parole Commission uses
in setting his parole status. See 28 C.F.R. 2.19(c). He
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also may appeal a parole decision to the National Appeals
Board. See id. 2.26.
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The second claim is that the PSI contained
erroneous information concerning the estimated parole
guidelines.1 Specifically, appellant points out, and the
government agrees, that the Salient Factor Score of Four
listed in the PSI is wrong. This score, combined with
appellant's Offense Severity rating of Five, resulted in an
estimate of 48 to 60 months imprisonment before release on
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1. The Parole Commission uses two variables to set probable
parole ranges. The first is the "Offense Severity" and the
second is the "Salient Factor Score." See 28 C.F.R. 2.20.
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This score represents a defendant's prior criminal history
and predicts the risk of parole violation. Id. The
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probation officer combines the two scores to arrive at an
estimate relative to how much time an inmate probably will
serve before being released on parole.
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parole. Rather, due to the fact that appellant has no prior
convictions, the proper Salient Factor Score is Ten. This
would reduce the customary time served before release to 24
to 36 months. Appellant essentially argues that the judge
relied on the 48-60 month estimate in imposing the ten-year
sentence. Applying the correct Salient Factor Score of Ten,
appellant calculates, should have resulted in a five-year
sentence.
This claim fails. Although it is true that a
sentence based on "misinformation of a constitutional
magnitude" or "materially untrue" assumptions of fact may
violate due process, United States v. Tucker, 404 U.S. 443,
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447 (1972), not every type of error is cognizable on
collateral attack. See United States v. Addonizio, 442 U.S.
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178, 186 (1979) (section 2255 relief based on errors of fact
available only where such errors are fundamental in nature
and are essential to the "`validity of the legal proceeding
itself'") (citation omitted). In United States v. Dean, 752
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F.2d 535 (11th Cir. 1985), cert. denied, 479 U.S. 824 (1986),
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the court held that Addonizio "completely foreclose[d] Dean's
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argument that the sentence was `illegal' merely because the
sentencing judge was mistaken about the length of time Dean
would likely serve prior to parole." 752 F.2d at 543
(footnote omitted).
The Court's message in Addonizio
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could not have been stated more clearly.
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A sentence is not "illegal" simply
because the original sentencing judge
mistakenly believed that the Parole
Commission would release the defendant
before the end of the defendant's full
sentence. Whether the sentencing judge's
belief was based on the judge's own
knowledge of the parole system or on a
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prediction contained in the presentence
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report is irrelevant.
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Id. at 544 (emphasis added).
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In any event, what is fatal to appellant's claim is
the fact that the district court did not rely on the Salient
Factor Score at all in its sentencing determination. At the
hearing, the court stated that it based the ten-year sentence
on the recommendation contained in the PSI. This
recommendation is not released to the parties; out of an
abundance of caution, we obtained it from the Probation
Department. Upon review, it is plain that the probation
officer placed no reliance on the estimated parole release
range, much less on the Salient Factor Score. Indeed, no
reference was made to the "Sentencing Data" sheet which
contains this information.
Appellant's claim that Egbert provided ineffective
assistance of counsel in violation of the Sixth Amendment by
not bringing the erroneous Salient Factor Score to the
court's attention falls short for the same reason. To
prevail on such a claim, appellant must demonstrate that
Egbert's professional conduct fell below an objective
standard of reasonableness and that his "deficient
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performance" had a detrimental effect on the judgment. See
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Strickland v. Washington, 466 U.S. 668, 687, 691 (1984).
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Because the court did not rely on the mistaken Salient Factor
Score in arriving at a sentence, Egbert's failure to raise it
could not have prejudiced appellant.
It is, of course, possible that the error in the
Salient Factor Score could complicate matters before the
Parole Board. Having received a sentence twice as long as
the government recommended, we think that the appellant has
suffered enough misfortune without adding to it the risk of
any further misunderstanding about his prior history. Since
the government has conceded in its brief that the true
Salient Factor Score is Ten, a favorable figure, we will
direct that a copy of this opinion be transmitted by the
Clerk directly to the Parole Board with a letter drawing
attention to this paragraph.
Based on the foregoing, the judgment of the
district court is affirmed. We strike the supplemental
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appendix filed by appellant; it contains a transcript of
Georgeau's grand jury appearance which was not part of the
record below. We also deny appellant's motion to reconsider
our order refusing his request to hold his appeal in
abeyance.
It is so ordered.
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