OpenJurist

107 F3d 1 United States v. Moran

107 F.3d 1

UNITED STATES, Appellee,
v.
George MORAN, Defendant, Appellant.

No. 95-2269.

United States Court of Appeals, First Circuit.

Feb. 5, 1997.

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

George Moran on brief pro se.

Donald K. Stern, United States Attorney, and Dina Michael Chaitowitz, Assistant United States Attorney, on Motion for Summary Disposition, for appellee.

Before SELYA, BOUDIN and LYNCH, Circuit Judges.

PER CURIAM.

1

We have carefully reviewed the record on appeal and the briefs of the parties. Assuming, in appellant George Moran's favor, that he has filed a timely appeal, we, nonetheless, conclude that the appeal has no merit.

2

The district court neither erred nor abused its discretion in construing Moran's self-styled "motion to amend an amended judgment in a criminal case" as a motion, filed pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. Neither did the district court err or abuse its discretion in denying Moran's motion for default. Moran's contention that the government's response to his § 2255 motion was late is unsupported in the record and, in any event, contrary to Moran's supposition, even if it were tardy, Moran is not thereby automatically entitled to a ruling on his § 2255 motion in his favor.

3

As for the substance of the § 2255 motion, the district court correctly concluded that, in this collateral attack, Moran may not relitigate issues already raised and rejected in his direct appeal and, to the extent that Moran seeks to raise new issues, they could have been, but were not, raised in that direct appeal.

4

In any event, Moran's complaint about the time frame of the conspiracy, to the extent it is not foreclosed by our opinion in his direct appeal, see United States v. Moran, 984 F.2d 1299 (1st Cir.1993), is simply factually erroneous. Contrary to Moran's apparent present understanding, he was not charged with conspiring with Paul Callahan, who was jailed in October 1988; rather, he was charged with conspiring with Hobart Willis (the alleged ringleader) and others and that conspiracy was alleged to have lasted until June 12, 1990.

5

Moran's remaining appellate arguments are foreclosed not only by circuit precedent, see United States v. Lindia, 82 F.3d 1154, 1161 (1st Cir.1996), but also circuit precedent, the holding of which was recently favorably cited by the Supreme Court, see United States v. Watts, 117 S.Ct. 633 (1997) (per curiam), citing United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989). Finally, the government correctly points out that the amount of cocaine underlying the counts on which Moran was acquitted played no dispositive role in the ultimate sentence imposed. His offense level, and his sentence, was determined by his status as a career offender.

6

The "motion for reassignment of appellate panel" is denied.

7

The orders of the district court denying the motion for default and the § 2255 motion are Affirmed.