Lanza v. United States , 24 F. App'x 5 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2531
MICHAEL LANZA,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Michael Lanza on brief pro se.
Gretchen Leah Witt, United States Attorney, and Peter E.
Papps, First Assistant U.S. Attorney, on Motion for Summary
Disposition for appellee.
November 28, 2001
Per Curiam. After a thorough review of the record
and of the parties' submissions, we affirm.
Appellant Michael Lanza ("Lanza") was convicted of
one count of conspiracy, in violation of 18 U.S.C. § 371,
and four counts of interstate transportation of stolen
property, in violation of 18 U.S.C. §§ 2314 and 2. The
stolen property included, inter alia, a quantity of
pharmaceuticals equivalent to 1,368.66 kilograms of
marijuana. Lanza appeals from the district court's denial
of his petition filed pursuant to 28 U.S.C. § 2255 alleging
ineffective assistance of counsel at sentencing. Lanza
asserts that his attorney performed deficiently by (1)
failing to assert more vigorously that Lanza intended to
consume rather than sell the stolen drugs, and (2) failing
to argue that Lanza was entitled, pursuant to U.S.S.G. §
5G1.3(b), to full credit on his federal sentence for the
time he had served in state prison on an undischarged
sentence for drug trafficking.
We find ample support in the record for the
inference that Lanza did intend to sell at least a large
portion of the stolen drugs, and Lanza has not produced or
offered any evidence to support his assertion that all the
drugs were intended for personal use. Accordingly, we think
that the offense level was appropriately determined by
applying U.S.S.G. § 2D1.1 pursuant to the cross-reference in
U.S.S.G. § 2B1.1(c)(1)(B). Moreover, given that counsel
would have had to establish that petitioner consumed or
intended to consume the equivalent of more than 368.66
kilograms of marijuana to make any difference in the offense
level under § 2D1.1, compare U.S.S.G. §§ 2D1.1(c)(4) &
(c)(5), we do not think counsel's failure to aggressively
seek a reduction in the attributable drug weight at the plea
negotiation stage was unreasonable, particularly in light of
the fact that he later sought a downward departure based on
personal use.
Further, we think there is sufficient evidence in
the record to justify application of § 2D1.1 even without
considering Lanza's state court drug trafficking conviction.
Accordingly, Lanza was not prejudiced by his counsel's
failure to argue for full credit for the undischarged state
drug sentence pursuant to U.S.S.G. § 5G1.3(b). See
Strickland v. Washington, 466 U.S. 668, 687 (1984); United
States v. Caraballo, 200 F.3d 20, 28-29 (1st Cir. 1999).
Finally, to the extent Lanza claims that his
counsel was ineffective for failing to file a direct appeal
on his behalf, his challenge is based on his disagreement
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with his attorney's assessment of the issues. Since Lanza
does not dispute that his attorney consulted with him
concerning the potential for an appeal, and does not contend
that he ever instructed counsel to file a notice of appeal,
defense counsel's failure to appeal was not constitutionally
deficient. See Roe v. Flores-Ortega, 528 U.S. 470, 478
(2000).
Affirmed. See Loc. R. 27(c).
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