USCA1 Opinion

June 24, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-2136

DAVID MALGERI,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Walter Jay Skinner, Senior U.S. District Judge]

__________________________

____________________

Before

Selya, Cyr, and Lynch,

Circuit Judges.
______________

____________________

David Malgeri on brief pro se.

_____________
Donald K. Stern,
_________________

United

States

Attorney,

Assistant U.S. Attorney.

____________________

Donald L. Cabe
________________

____________________

Per Curiam.
__________

district

Pro se
___ __

petitioner David Malgeri

appeals a

court order that summarily denied his motion to set

aside his

U.S.C.

conviction and withdraw

2255.

federally

2113(a),

Malgeri pled

insured

and to

bank in

using

his guilty plea

guilty to attempting to

violation

and carrying

attempt in violation of 18 U.S.C.

his plea was not knowing

court

effect

failed to

this case

to a prisoner who

2,

during that

He contends that

about supervised release

district

and its

In an apparent effort to

from United States v.

______________

U.S. 780 (1979)(holding that

rob a

18 U.S.C.

a firearm

924(c).

during his Rule 11 hearing.

distinguish

of

and voluntary because the

warn him

under 28

Timmreck, 441
________

2255 relief was not available

alleged that the district court

failed to

advise him of a mandatory special parole term in violation of

Rule

11),

Malgeri

avers

that

he

was

wholly unaware

of

supervised

district

release

and

its

effect

court proceedings and

throughout the

that he would

entire

not have pled

guilty had he been advised of supervised release.

Relying on Timmreck, the

________

district court concluded

Malgeri failed to state a cognizable habeas claim.

We reject Malgeri's contention

in holding

that he

had

failed to

Malgeri cannot convert

into a

constitutional error simply

of supervised

-2-

We agree.

that the district court erred

error.

otherwise unaware

that

allege a

constitutional

a technical Rule 11 violation

by averring that

release and would

he was

not have

pled guilty had he been so aware.

States,
______

963 F.2d 8, 12-15

Holloway,
________

960 F.2d

1348,

See, e.g., Lucas v. United

___ ____ _____
______

(2d Cir. 1992);

1352-54 (8th

United States v.
_____________

Cir. 1992);

United
______

States v. DeLuca, 889 F.2d 503, 507-08 (3d Cir. 1989).1

1
______
______

Malgeri also argues

his firearm

conviction

that he is entitled

to relief from

because he did not "use"

a firearm

as that term is construed in Bailey v. United States, 116

______
_____________

S.

Ct.

501

(1995).

The

record

discloses

that

Malgeri's

conviction is fully supportable on the ground that he carried

the firearm.

1149,

See United States

_____ _____________

1152 (1st Cir.

v. Ramirez-Ferrer, 82
______________

1996). Thus, Bailey

______

F.3d

provides no basis

for relief.

In view

of the foregoing, the judgment

court is summarily affirmed.

________

____________________

of the district

See Local Rule 27.1.

___

1Malgeri also
1
plea

claims that

colloquy misled him to believe

not exceed the 93-101

that

he was prejudiced

the prosecutor

questioning.

sentence

identified in

to

entirely within

plea

Rule

11

hearing.

applicable GSR
sentence

claim.

agreement that

the law.

promised a particular

The

in no way

court's

questions

imported a promise

would not exceed that range.

prejudiced by the plea colloquy.

-3-

the court's
Malgeri pled

the court's discretion

statutory maximum available under

he had not been

response to

refutes this

an open

that

that his sentence would

month guideline sentencing range (GSR)

The record

guilty pursuant

because the

left

his

within the

Malgeri affirmed
sentence at the
concerning

the

that Malgeri's

Thus, Malgeri was not