USCA1 Opinion

March 22, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2028
ANGEL LUIS FIGUEROA,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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____________________
Angel Figueroa on brief pro se.

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A. John Pappalardo, United States Attorney, and Dina Mich
___________________
__________
Chaitowitz, Assistant United States Attorney, on brief for appellee
__________
____________________
____________________

Per Curiam.
__________
denial of
aside,

Angel Luis Figueroa appeals pro se from the

a motion

or

convicted of

correct

his

U.S.C.

sentence.

2255
In

was sentenced to

500 or more grams

a prison term

affirmed both

United States v. Figueroa,

______________
________

a pair of challenges

being

to possess with

months.

his conviction

cert. denied, 113 S. Ct. 1346 (1993).

_____________

upon

set

of cocaine, Figueroa

of 188

976 F.2d

to vacate,

1990,

both conspiring and attempting

intent to distribute

thereafter

under 28

This

and his

1446 (1st

court

sentence.
Cir. 1992),

Figueroa now advances

to his sentence, claiming that

(1) the

quantity of
improperly

drugs

for which

he

inflated because

was held

accountable

of "sentencing

entrapment" and

other reasons, and (2) his base offense level was

enhanced
role.
was

by four

As a

levels because

of his

failing to

improperly

alleged leadership

corollary complaint, he argues that

ineffective in

was

raise these

his counsel

issues earlier.

Assuming arguendo that such contentions are cognizable in a

________
2255

proceeding,

we

find

each of

them

unpersuasive

and

therefore affirm.
As explained

in greater detail in

our earlier opinion,

Figueroa and his confederates were apprehended as a result of

a

"reverse-sting"

operation

purchase of drugs from an

Agency

(Estaban Mendoza).

course of his

See
___

id. at 1450-51.
___

negotiations with Mendoza,

that

his

their

attempted

informant for the Drug Enforcement

purchasing anywhere from three

explaining

involving

During the

Figueroa discussed

to five kilograms of cocaine,

organization

had

been

selling

approximately
bags.

The

$6,000 worth
parties

kilograms, with
follow.

settled upon

$30,000 being

At sentencing,

the attempted
This

"dime"
of

two

$10,000 to

latter figure was

$6,000 per
him

that Figueroa

kilograms involved in

sale, but for an additional three kilograms as

conspiracy

hold

initial sale

paid up-front and

for the two

approximate amount of cocaine

the

an

day in

the court determined

responsible not only

well.

drug per

The sum of $29,850 was in fact seized at the time of

arrest.
was

of the

based

day.1

reached by extrapolating

the

distributed over the course of

on Figueroa's

acknowledged

sales of

Figueroa now contends that it was error to

accountable for

five

kilograms

for purposes

of

The basis for this challenge is amorphous in nature.

In

sentencing.

his petition, Figueroa devotes considerable attention to

notion

of

"sentencing
viability of

"sentencing

entrapment"

factor manipulation").
such a

Brewster, 1 F.3d
________

(1st Cir. 1993);

F.2d 256,

more

properly,

Whatever the theoretical

doctrine, see, e.g.,

___ ____

51, 55

Panet-Collazo, 960
_____________

(or,

the

United States
_____________

v.

United States
_____________

v.

262 (1st Cir.),

cert. denied,
____________

____________________
1. The indictment charged that the conspiracy occurred
between December 24, 1989 and January 25, 1990.
A DEA agent
testified that one kilogram
of cocaine would generate
approximately $70,000 when distributed in "dime" bags. See
___
976 F.2d at 1461 n.19.

-3-

113 S. Ct.
191,

220 (1992);

United States v.
_____________

194-97 (1st Cir. 1992)

basis

of

based

on

kilograms

(all rejecting such

facts presented),

occasion to address it.

the

the

instant

question

were

that
those

F.2d

a claim on

case provides

Figueroa's claim in this

misimpression

in

Connell, 960
_______

the

regard is

additional

that

he

and

no

three
Mendoza

discussed for possible sale during their negotiations (beyond

the

two

kilograms

mentioned, this
Figueroa had
month.
the two

actually

agreed

upon).

figure reflected the quantity

admitted selling to others

Figueroa

in the

subject of "manipulation."

as

of drugs that

during the previous

specifically disclaims any

kilograms involved

Instead,

suggestion that

attempted sale

were the

And any such argument would

have

faltered for the reasons recited in Brewster, 1 F.3d at 55.

________
In a related
that the

(if inconsistent) vein, Figueroa

evidence was

insufficient to hold

for the three kilograms sold

course of the conspiracy.

contends

him responsible

by his organization during

the

We rejected the identical argument

on

direct

appeal.

Referring to

(Angel) Figueroa

and his

brother Tomas, we stated:

Tomas, as well as Angel, admitted that $6,000 worth
of "dime" bags were being sold daily through the
record
shop
during
the alleged
conspiracy.
Although appellants characterize these statements
as mere "puffery," the sentencing judge who heard
the trial testimony was entitled to credit their
admissions. The court permissibly extrapolated the
approximate amount of cocaine distributed during
the relevant period based on the sums of money
admittedly received.
There was no clear error in
-4-

the determination of the quantity of cocaine for

which Angel and Tomas Figueroa were responsible.
976 F.2d at 1460-61 (citations and footnotes omitted).
Figueroa's challenge to the determination
role

in the

court

held

U.S.S.G.

offense is
that

3B1.1(a)

enhancement.
evidence

On

likewise unavailing.

was

"an organizer

and thus
appeal,

was insufficient

leadership role.
amply

he

To

was

leader"

subject to

to establish

976 F.2d

The district

or

Figueroa argues

the contrary,

demonstrates, see
___

regarding his

as our

a four-level

only

that he

under

that

the

occupied a

earlier opinion

at 1450-51,

the district

court

supportably

activities

of

found

that

he

his co-conspirators"

"directed
and

...

that

all

he was

the
"the

controlling participant in negotiating the amount [of cocaine

to

be

purchased],

delivery of the
44.

"Role

price,

and

the

arrangements

money to the confidential informant."

in the

review only for

the

offense" determinations

clear error.

See, e.g.,
___ ____

for
App.

are subject

to

United States
_____________

v.

Ruiz-Del Valle, 8 F.3d 98, 104 (1st Cir. 1993).

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We find none

here.
Finally, as each of Figueroa's central arguments
wanting,

his

subsidiary

allegations regarding

assistance of counsel must also fail.

Affirmed.
_________

-5-

proves

ineffective