USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2269

UNITED STATES,

Appellee,

v.

GEORGE MORAN,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, Senior U.S. District Judge]

__________________________

____________________

Before

Selya, Boudin and Lynch,

Circuit Judges.
______________

____________________

George Moran on brief pro se.

____________
Donald K. Stern,
_________________
Chaitowitz, Assistant
__________

United

States

United States

Disposition, for appellee.

Attorney,

and

Dina
Mich
___________

Attorney, on Motion

for Summ

____________________

February 5, 1997
____________________

Per Curiam.
__________

We have carefully

reviewed the record

on

appeal and the briefs of the parties.

George

Assuming, in appellant

Moran's favor, that he has filed a timely appeal, we,

nonetheless, conclude that the appeal has no merit.

The

district

court

neither

erred

nor

abused

its

discretion in construing Moran's self-styled "motion to amend

an

amended judgment in a

pursuant to 28 U.S.C.

his

sentence.

its

discretion

criminal case" as

2255, to vacate, set aside or correct

Neither did

in

Moran's contention

a motion, filed

the district court

denying

that the

Moran's

motion

err or abuse

for

default.

government's response to

his

2255 motion was late is unsupported in the record and, in any

event,

contrary

tardy,

Moran

ruling on his

to Moran's

is not

thereby

supposition,

even

automatically

2255 motion in his favor.

if it

were

entitled to

As

for the substance of the

court correctly

Moran may

in

concluded that, in

this collateral

not relitigate issues already

his direct appeal and, to the

raise

2255 motion, the district

attack,

raised and rejected

extent that Moran seeks to

new issues, they could have been, but were not, raised

in that direct appeal.

In any event, Moran's complaint about the time frame

the conspiracy, to

the extent

it is not

foreclosed by

of

our

opinion in his direct appeal, see United States v. Moran, 984

___ _____________
_____

F.2d

1299 (1st

Cir. 1993),

is simply

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factually erroneous.

Contrary to Moran's

not

charged

jailed

in

conspiring

apparent present

with conspiring

October

1988;

with Hobart

others and that

understanding, he

with

Paul

rather,

he

Callahan, who

was

Willis (the alleged

conspiracy was alleged to

charged

was

was

with

ringleader) and

have lasted until

June 12, 1990.

Moran's remaining appellate arguments are foreclosed not

only

by circuit precedent,

see United States

___ _____________

v. Lindia, 82
______

F.3d 1154,

the

1161 (1st Cir. 1996), but also circuit precedent,

holding

of which

Supreme Court, see

___

(1997) (per

F.2d 13,

was recently

United States
_____________

curiam), citing
______

16-17 (1st

correctly points

Cir.

out that

favorably cited

v. Watts, 117
_____

United States v.
_____________

1989).

S. Ct.

633

Mocciola, 891
________

Finally, the

the amount of

by the

government

cocaine underlying

the counts on which Moran was acquitted played no dispositive

role in the

and

ultimate sentence imposed.

his sentence, was determined

His offense

by his status

level,

as a career

offender.

The "motion for reassignment of appellate panel" is

________________________________________________________

denied.
_______

The orders of the district court denying the motion for

________________________________________________________

default and the

2255 motion are Affirmed.
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