UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 98-50169 __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY F. PROVENZANO,

Defendant-Appellant.

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Appeal from the United States District Court for the Western District of Texas (EP-97-CV-95-H & EP-93-CR-42-5-H) ______________________________________________

October 29, 1999

Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*

In 1994, pursuant to a plea agreement filed in the El Paso

Division of the Western District of Texas, Anthony F. Provenzano

pleaded guilty to one count of conspiracy to possess with intent to

distribute more than 100 kilograms of marijuana and to one criminal

forfeiture count in the amount of $2,750,000. The district court

sentenced Provenzano to 120 months on the conspiracy count. That

same year, in federal district court in Tucson, Arizona, Provenzano

was convicted by a jury on one count of conspiracy to possess with

* Pursuant to 5th Cir. Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. Rule 47.5.4. intent to distribute marijuana and two counts of possession with

intent to distribute marijuana. United States v. Provenzano,

(9th Cir. 1995) (unpublished), available at

. He received a 168-month sentence on each count, the

sentences to run concurrently. The Ninth Circuit vacated his

sentence and remanded for resentencing.

According to

Provenzano, on remand he received a sentence of 136 months. In any

event, the district court in this case ordered Provenzano’s 120-

month sentence to run concurrently to his Tucson sentence.2

In the El Paso plea agreement, Provenzano, a lawyer himself,

agreed to waive his right to appeal his sentence on “any ground,”

and he similarly agreed “not to contest his sentence . . . or the

manner in which it was determined in any post-conviction

proceeding, including, but not limited to, a proceeding under

.” However, in that same agreement, Provenzano

specifically reserved the right to appeal his sentence in the

Tucson case.

Provenzano did not attempt to file a direct appeal. He filed

the instant section 2255 motion alleging that counsel rendered

ineffective assistance in connection with his guilty plea and

during the sentencing proceedings. The district court denied

relief and his motion for a certificate of appealability (COA).

Provenzano thereafter moved this Court for a COA, raising “as

2 Also pursuant to the El Paso plea agreement, Provenzano plead guilty to one count of mail fraud that had been transferred from district court in Chicago pursuant to Fed. R. Crim. P. 20. The district court sentenced him to 40 months imprisonment to run concurrently to both the El Paso sentence and the Tucson, Arizona sentence.

2 the only issue on this appeal the matter of ineffective assistance

of counsel at the sentencing.” Provenzano argued that counsel was

ineffective for relying solely on argument to counter the amounts

of marijuana stated in the presentence report (PSR). He contends

that counsel should have interviewed and presented the testimony of

witnesses who could rebut the information in the PSR regarding

certain alleged deliveries of marijuana. Finding that Provenzano

had made a substantial showing that his allegations of ineffective

assistance at sentencing were sufficient to warrant an evidentiary

hearing, we granted a COA and directed that the following two

issues be briefed:

1. May a defendant who has waived his right to challenge his sentence in a § 2255 proceeding defeat the waiver by alleging ineffective assistance of counsel at sentencing, when the defendant does not allege ineffective assistance of counsel relating to his guilty plea or his understanding of the waiver-of-appeal provision in his plea agreement?

2. Whether Provenzano’s allegations of ineffective assistance of counsel at sentencing were sufficient to warrant an evidentiary hearing.

Provenzano filed a brief asserting that the Government had

forfeited the waiver argument because it had not raised the issue

in the district court. In its brief, the Government wholly failed

to respond to Provenzano’s forfeiture argument but nevertheless

argued that the waiver provision should be enforced because

Provenzano was challenging the correctness of his sentence, which

was barred by the plain language of the waiver contained in the

plea agreement. Alternatively, the Government conceded that if

3 this Court found the waiver unenforceable, a remand to the district

court for additional factual findings concerning the claims of

ineffective assistance of counsel would be appropriate.

At oral argument, the Government informed us that, since the

filing of its brief, the United States Attorney’s Office for the

Western District of Texas no longer takes the position that a

defendant may waive ineffective assistance of counsel claims in a

plea agreement. Thus, the Government stated that it would not seek

to enforce the waiver provision in the case at bar. Additionally,

contrary to its earlier concession that if the waiver was

unenforceable it would be appropriate to remand the case for

further factual findings, the Government now urges us not to remand

the case because the record demonstrates no prejudice.

Specifically, the Government claims that even if counsel had

presented the testimony at sentencing that Provenzano claims should

have been offered, and the district court believed it, the

remaining, unrebutted evidence demonstrated over 1,000 kilograms of

marijuana, and therefore Provenzano would have received the same

ten-year statutory minimum sentence under Title

(b)(1)(A).

In light of the Government’s concession that the waiver is not

enforceable, the only issue remaining is whether the district court

erred in failing to grant Provenzano an evidentiary hearing on his

allegations of ineffective assistance. “Relief under

is reserved for transgressions of constitutional rights and

for a narrow range of injuries that could not have been raised on

direct appeal and would, if condoned, result in a complete

4 miscarriage of justice.” United States v. Vaughn,

(5th Cir. 1992). Technical misapplication of the sentencing

guidelines does not give rise to a constitutional issue.

Provenzano’s argument is couched in terms of ineffective assistance

of counsel at sentencing. Such a claim is constitutional and

cannot generally be resolved on direct appeal.

To demonstrate ineffective assistance of counsel, Provenzano

must establish that counsel’s performance was deficient and that

the deficient performance resulted in prejudice. United States v.

Acklen,

(5th Cir. 1995). In regard to prejudice,

Provenzano must show that “there is a probability that, but for

counsel’s deficiency, [his] sentence would have been significantly

less harsh.”

We will assume arguendo that Provenzano has established that

counsel’s performance was deficient. We must now determine

whether, but for counsel’s failure to present certain witnesses at

sentencing, Provenzano’s sentence would have been significantly

less harsh. To do so, we look at the calculation of Provenzano’s

sentence.

The district court adopted the factual findings and guideline

application in the PSR, which provided that Provenzano was held

accountable for the following amounts of marijuana:

4,600 pounds delivered by Oertel 1,000 pounds lost by Guzman in Colorado- intended for Provenzano 360 pounds delivered to Provenzano pursuant to Armando Melendez’ instructions after the 1,000 pound loss

The above amounts total 5,960 pounds (approximately 2,703

5 kilograms) of marijuana. Because the total amount of marijuana

attributed to Provenzano exceeded 1,000 kilograms, the statutory

minimum of ten years was applied.

In support of his claim that counsel’s failure to present

certain witnesses at sentencing prejudiced him, Provenzano relies

on several affidavits. He alleges that the affidavits of Art

Biddle, Joseph Orlandion, and Frank Flynn establish that the

district court erred in attributing 1,360 pounds of marijuana to

him. Subtracting the 1,360 pounds (approximately 616 kilograms)

still leaves Provenzano over the 1,000 kilogram threshold.

He further alleges that the affidavit of his sister, Donna

Stamatakos, establishes that he could not have received certain

deliveries that government informant Oertel attributed to him. He

asserts that “the weight of marijuana that could have been

attributed to [him] would have been 1000 pounds and this weight

would have taken [him] out of the mandatory ten year minimum.”

However, he fails to specifically state how the uncalled witnesses’

testimony would have shown that only 1000 pounds (or more to the

point, less than 1000 kilograms) of marijuana should have been

attributed to him. Neither do the affidavits establish that the

district court erred in attributing the remaining marijuana to him.

The sister’s affidavit states that she “would be willing to provide

the dates to the Court with the understanding that the information

would not be released to the Government until the informants

(Government) respond to discovery requests.” Provenzano has the

burden of establishing that counsel rendered ineffective

assistance. We find that the affidavits are insufficient to

6 establish the prejudice prong. See West v. Johnson,

(5th Cir. 1996) (concluding that affidavit filed by § 2254

petitioner did not establish either deficient performance or

prejudice).

Finally, we note that this Court and the Sixth Circuit have

indicated that when a petitioner challenges a sentence that is

being served concurrently with an unchallenged sentence of equal

length, he cannot show prejudice under Strickland3 because “the

dual sentencing is of no real consequence.” United States v.

Tolliver,

, 1223 & n. 54 (5th Cir. 1995), vacated on

other grounds sub. nom.,

(1996); Green v. United

States,

(6th Cir. 1995) (explaining that even if

the shorter, concurrent sentence was a result of deficient

performance under Strickland, there was no prejudice in that the

error “would have had no effect on the length of time [the

petitioner] must spend in prison”). Here, Provenzano challenges

his 120-month El Paso sentence that is being served concurrently

with his 136-month Tucson sentence. The original Tucson sentence

has been appealed, and in the instant § 2255 motion Provenzano

indicates that he is “unsure at this time” whether he will make any

future challenges to his Tucson sentence. Provenzano has not

demonstrated the prejudice prong under Strickland.

For the above reasons, a remand is unnecessary and the

district court’s judgment is AFFIRMED.

3 Strickland v. Washington,

,

(1984).

7