David v. U.S.

• Citation: 134 F.3d 470
• Decision Date: 02 December 1997
• Docket Number: No. 97-1398,97-1398
• Parties: Shmuel DAVID, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 470

134 F.3d 470

Shmuel DAVID, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 97-1398.

United States Court of Appeals, First Circuit.

Heard Dec. 2, 1997.

Decided Jan. 27, 1998.

Peter Goldberger, Ardmore, PA, with whom Pamela A. Wilk was on brief, for appellant.

Robert L. Peabody, Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

Some four years ago, petitioner-appellant Shmuel David filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255 (1994). ¹ The district court eventually denied the petition without holding an evidentiary hearing. David appeals. We affirm.

I. Background

On direct appeal, we described the petitioner's case as "involv[ing] a spider web of drug dealing, with David at the web's center," United States v. David, 940 F.2d 722, 726 (1st Cir.1991) (David I ), and we proceeded to affirm his convictions on a myriad of charges. Inasmuch as the predicate facts are set out at length in that opinion, we offer only a precis of those events to set the stage for the instant appeal.

In David I, the government charged that, during 1986, 1987, and 1988, David, thirteen codefendants, and various other persons engaged in extensive cocaine trafficking. Mirroring the prosecution's theory that a shift from domestic to foreign suppliers transmogrified the operation, the indictment described two conspiracies: one beginning in 1986 and ending in March of 1988, and the other taking up where the first left off and ending later that year. Following a nine-week trial, a jury found the petitioner guilty on twenty-two counts, including charges that he: (a) engaged in a continuing criminal enterprise (CCE), see 21 U.S.C. § 848; (b) participated in both conspiracies, see 21 U.S.C. § 846; (c) possessed cocaine with intent to distribute on several occasions, see 21 U.S.C. § 841(a)(1); and (d) facilitated numerous drug transactions by using the telephone, see 21 U.S.C. § 843(b).

At the disposition hearing, the district court, employing the January 1988 edition of the sentencing guidelines, grouped related offenses, see USSG § 3D1.1(a); used available drug-quantity evidence to fix a base offense level of 36, see USSG § 2D1.1; added two levels for possession of a firearm during the commission of an offense, see USSG § 2D1.1(b); added four more levels for the petitioner's leadership role, see USSG § 3B1.1; and subtracted two levels for acceptance of responsibility, see USSG § 3E1.1. In the end, the district court sentenced the petitioner within the computed guideline sentencing range, imposing a thirty-year incarcerative term on the CCE and various "grouped" possession counts and shorter periods of immurement on the remaining charges. The court designated all the sentences to run concurrently.

Represented by new counsel, David appealed. We vacated the conspiracy convictions as violative of the multiple punishments prong of the Double Jeopardy Clause, given the conviction and sentence on the encompassing CCE count. See David I, 940 F.2d at 738 (citing United States v. Rivera-Martinez, 931 F.2d 148, 152-53 (1st Cir.1991)). In all other respects, we affirmed the convictions and the corresponding sentences.

On January 7, 1994, while still incarcerated, the petitioner retained fresh counsel and filed a motion for post-conviction relief in the district court. Judge Gertner assumed responsibility for the motion in place of the late Judge McNaught, who had presided over the trial and had imposed sentence. She ultimately denied it on January 2, 1997, but did not deign to hold an evidentiary hearing. Without missing a beat, the petitioner changed counsel again. His new lawyers filed a motion for reconsideration on February 26, 1997, which Judge Gertner also denied. The petitioner appeals solely from the original denial of post-conviction relief.

II. Analysis

The petitioner advanced three claims in the court below. Two of these claims related to the propriety of the sentencing calculations; one questioned the firearms enhancement and the second questioned the upward adjustment for role in the offense. The remaining claim posited ineffective assistance of trial counsel, stemming not only from an alleged failure to raise this pair of sentencing objections, but also from an alleged failure promptly to relay a potentially favorable plea bargain to the petitioner. On appeal, David has not continued his campaign against the role-in-the-offense adjustment, and we deem that challenge abandoned. See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). He does, however, renew the other two claims. After a brief introduction, we address each of them.

A. Introduction

Section 2255 is not a surrogate for a direct appeal. Rather, the statute provides for post-conviction relief in four instances, namely, if the petitioner's sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack. See Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 470-71, 7 L.Ed.2d 417 (1962) (construing statute). The catch-all fourth category includes only assignments of error that reveal "fundamental defect[s]" which, if uncorrected, will "result[ ] in a complete miscarriage of justice," or irregularities that are "inconsistent with the rudimentary demands of fair procedure." Id. at 428, 82 S.Ct. at 471. In other words, apart from claims of constitutional or jurisdictional nature, a cognizable section 2255 claim must reveal "exceptional circumstances" that make the need for redress evident. See id. The burden is on the petitioner to make out a case for section 2255 relief. See Mack v. United States, 635 F.2d 20, 26-27 (1st Cir.1980).

B. The Firearms Enhancement

The petitioner asserts that, as of the date of disposition (August 1, 1989), the guidelines did not authorize the two-level sentence enhancement imposed by Judge McNaught for the use of a firearm--an enhancement that tacked at least sixty-seven additional months onto David's sentence. This claim presents a bit of a moving target. In his section 2255 motion and in the court below, David asseverated that a two-level increase only could have materialized if it were authorized for the CCE conviction, and that the two-level firearms enhancement was unavailable because the applicable sentencing guideline, USSG § 2D1.5, did not make reference to it.

Having secured yet a fourth set of attorneys in the interim, the petitioner recast his argument in his motion for reconsideration, and now has come hard about. In this venue, he barely mentions section 2D1.5, but, rather, shapes his argument around USSG § 2D1.1. Paying very little heed to the fact that he initially told the lower court that section 2D1.1 did not apply at all, he now maintains that section 2D1.1 is the correct focal point, but that it cannot support the enhancement.

We approach this moving target with considerable caution. It is well established that a party may not unveil an argument in the court of appeals that he did not seasonably raise in the district court. See United States v. Slade, 980 F.2d 27, 30 (1st Cir.1992); see also Singleton v. United States, 26 F.3d 233, 240 (1st Cir.1994) (invoking this principle in a section 2255 case); United States v. Mariano, 983 F.2d 1150, 1158 n. 9 (1st Cir.1993) (invoking this principle in respect to sentencing issues).

To apply the principle here, we must measure the petitioner's current argument against that limned in his section 2255 motion and advanced before Judge Gertner, not by reference to the theory that he belatedly surfaced in his request for reconsideration. ² See Barrett v. United States, 965 F.2d 1184, 1187 n. 3 (1st Cir.1992); Mackin v. City of Boston, 969 F.2d 1273, 1278-79 (1st Cir.1992); Appeal of Sun Pipe Line Co., 831 F.2d 22, 24 (1st Cir.1987). Although the petitioner contends that the argument he makes today is merely a more sophisticated statement of a refrain contained in his section 2255 motion, that is plainly not the case. The two arguments are markedly different. Consequently, the newer version is by the boards.

The petitioner correctly reminds us that an appellate court has discretionary power to override a forfeiture of this type. To justify deploying this seldom-used power, however, the newly emergent contention must be one that practically guarantees the appellant's success. See Slade, 980 F.2d at 31. Here, the forfeited argument is considerably less than robust. We explain briefly.

The firearms enhancement about which the petitioner complains arose out of a discrete set of facts. In June 1987, a drug courier by the name of Filin, employed by David and his confederates, tried to purloin a shipment of cocaine by faking a robbery. The petitioner saw through the charade and later threatened Filin at gunpoint in an attempt to coerce a confession.

Under the sentencing regime imposed by the guidelines, the law in effect on the date of the disposition hearing governs, absent ex post facto concerns. See United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.1990). Hewing to this line, the government defends the enhancement by pointing to the version of USSG § 2D1.1(b)(1) that took effect on January 15, 1988. That guideline provided for a two-level upward adjustment if a firearm "was possessed during commission of the offense." USSG § 2D1.1(b)(1). The government concedes that "the offense" must be an offense to which the guidelines attached, thus restricting the enhancement in this case to the two drug distribution counts that transpired in 1988, namely, counts 15 and 16. ³ Notwithstanding this concession, the government posits that the phrase "during commission of the offense"...