Unpublished Disposition, 932 F.2d 973 (9th Cir. 1990)

MEMORANDUM^** 

Pedro Perera, a federal prisoner, appeals pro se the district court's order denying his 28 U.S.C. § 2255 motion to vacate and set aside his conviction for possession of cocaine. We affirm.

Appellant was indicted for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and possession of over 5 kilos of cocaine, in violation of 21 U.S.C. § 841(a) (1). Appellant pled guilty to possession of cocaine in an amount over 500 grams. Appellant was sentenced to twelve years incarceration with a four-year special parole.

The district court denied Appellant's Rule 35(b) motion for reduction of sentence. Appellant subsequently filed a Sec. 2255 motion, which was denied by the district court on April 3, 1990. Appellant filed a notice of appeal on April 16. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2255.

The district court found no merit in Appellant's arguments in support of his Sec. 2255 motion. Appellant raises several of those arguments on appeal,¹  and we address each one in turn.² 

Ineffective Assistance of Counsel

At his first appearance after his arrest, Appellant requested a court-appointed attorney. The magistrate denied the request, on the grounds that Appellant had sufficient funds to hire an attorney. Appellant did in fact retain the services of an attorney on or before September 26, 1988. Appellant claims that the denial of court-appointed counsel, which forced him to hire an attorney, denied him effective assistance of counsel.

An indigent criminal defendant has a right under the sixth amendment to be represented by counsel or to represent himself if he so chooses. United States v. Wadsworth, 830 F.2d 1500, 1504 (9th Cir. 1987). Section 3006A of Title 18 requires the magistrate judge or district judge to appoint counsel for a defendant "if he is financially unable to obtain counsel." Failure to inquire as to the defendant's ability to afford counsel violates section 3006A(b). Id. Here, Magistrate Judge Juba questioned Appellant regarding his financial status. The magistrate judge considered Appellant's cash resources, the value of Appellant's home and the two mortgages on it, and Appellant's three automobiles. Having considered these resources, the magistrate judge determined that the Appellant did not qualify for appointed counsel. This finding does not violate section 3006A, and was not in error.

Appellant's reliance on cases dealing with forfeiture of assets is misplaced. Requiring that a criminal defendant use available personal resources to hire an attorney rather than providing an attorney at government expense does not constitute criminal forfeiture.

Appellant also alleges that the performance of his retained counsel denied him effective assistance. Specifically, Appellant alleges that his attorney failed to reach a favorable plea agreement, failed to object to inaccuracies in the presentence report, and left an associate in charge of the case shortly before Appellant's sentencing hearing. Appellant has met neither prong of Strickland v. Washington, 466 U.S. 668 (1984). The district court did not err in denying the motion on the ground of ineffective assistance of counsel.

Self-Incrimination

Appellant argues that certain statements made by him to the U.S. Attorney and an FBI agent were obtained and used in violation of his fifth amendment right against self-incrimination. Appellant failed to object to the use of these statements in the district court.

In neither his original Sec. 2255 motion nor his appellate brief has Appellant specified what statements were used against him, or how the use of those statements prejudiced him. Therefore, we are unable to say that the use of the statements constitutes plain error. See United States v. Branson, 756 F.2d 752, 753 (9th Cir. 1985).

Failure of Indictment to Allege Amount of Cocaine

Appellant next argues that the indictment failed to allege the amount of drugs involved in the conspiracy, and that there was a prejudicial variance between the facts alleged in the indictment and the facts proven through the presentence report.

In a conspiracy to distribute drugs, the sentencing court may consider the total amount of drugs involved, rather than the amount of drugs alleged in a particular defendant's indictment. See United States v. Turner, 898 F.2d 705, 710-11 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990).

Further, Appellant has failed to show that there was a variance, and that the variance affected his "substantial rights." See United States v. Von Stoll, 726 F.2d 584, 587 (9th Cir. 1984). The district court did not err in denying Appellant's motion on this ground.

Inaccuracies in the Presentence Report

Appellant next argues that he was prejudiced by the inclusion in the presentence report of facts which were not agreed to in the plea agreement. The plea agreement called for Appellant to plead guilty to a charge of possession of more than four kilograms of cocaine. The presentence report recommended that Appellant be found responsible for twenty kilograms of cocaine; the district court accepted this recommendation as to Appellant's level of responsibility. As discussed supra, each member of a conspiracy may be held accountable for the total amount of drugs possessed by all other members of the conspiracy. Further, Appellant admitted at sentencing that he was responsible for ten to twelve kilograms of cocaine. We find no error in the district court's decision to attribute twenty kilograms to Appellant.

Appellant also argues that he was denied a reasonable amount of time in which to review the presentence report, in violation of Rule 32. Appellant received the presentence report on December 16, 1988, and was sentenced on December 27. This was an eminently reasonable amount of time.

Appellant next contends that the district court failed to consider fully the Sec. 2255 motion. Appellant contends that because the order denying the motion was filed one day after the case was reassigned to a new judge, the district court failed to consider the applicable law, and was improperly influenced by the response to the motion filed by the United States Attorney.

The fact that the district court agreed with the government's counsel does not prove that the court failed to consider Appellant's arguments.

Appellant's motion was referred to a magistrate judge by District Judge Redden, who had presided over Appellant's case. The magistrate judge mistakenly submitted an order referring the case back to District Judge Marsh. Judge Marsh reassigned the case to Judge Redden, who filed the order and opinion denying Appellant's motion one week later. Because Judge Redden was very familiar with the case, and because there was no failure to consider the motion fully by Judge Redden, the appeal on this ground must also be denied.

Appellant next argues that the district court erred in failing to make findings of fact pursuant to Fed. R. Civ. P. 52, and in failing to hold an evidentiary hearing on the Sec. 2255 motion.

Rule 52(a) requires that a district court make findings of fact and conclusions of law, "in all actions tried upon the facts without a jury."

Section 2255 requires the district court to hold an evidentiary hearing " [u]nless the motions and files and records of the case conclusively show that the prisoner is entitled to no relief." An evidentiary hearing is usually required if the motion states a claim based on matters outside the record or events outside the courtroom. The district court may deny a section 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. A judge may supplement the record with his "recollection of the events at issue" and then summarily dismiss a section 2255 motion.

United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989) (citations omitted).

In support of its order denying Appellant's Sec. 2255 motion, the district court filed an opinion setting forth the factual and legal basis for the denial. This opinion clearly meets the requirements of Rule 52(a). We find no issue in Appellant's Sec. 2255 motion that could be said to be based on "matters outside the record or events outside the courtroom." Therefore, the district court did not err in failing to hold an evidentiary hearing on the motion.

Finally, Appellant argues that he has been prejudiced by the "interference" of the United States Attorney, and Appellant's deprivation of meaningful access to the court.

The United States Supreme Court has repeatedly held that prisoners have a constitutional right of meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 821-25 (1977), and cases cited therein. Whether the movant must be allowed to appear in court to argue the validity of a Sec. 2255 claim, however, is left to the discretion of the district court. See Machibroda v. United States, 368 U.S. 487, 495 (1962). The allegations of Appellant here were not of such a character as to require Appellant's presence in court.

AFFIRMED.