Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.david Malgeri, Petitioner, Appellant, v. United States of America, Respondent, Appellee, 89 F.3d 823 (1st Cir. 1996)

Pro se petitioner David Malgeri appeals a district court order that summarily denied his motion to set aside his conviction and withdraw his guilty plea under 28 U.S.C. § 2255. Malgeri pled guilty to attempting to rob a federally insured bank in violation of 18 U.S.C. §§ 2, 2113(a), and to using and carrying a firearm during that attempt in violation of 18 U.S.C. § 924(c). He contends that his plea was not knowing and voluntary because the district court failed to warn him about supervised release and its effect during his Rule 11 hearing. In an apparent effort to distinguish this case from United States v. Timmreck, 441 U.S. 780 (1979) (holding that § 2255 relief was not available to a prisoner who 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 release and its effect throughout the entire district court proceedings and that he would not have pled guilty had he been advised of supervised release.

Relying on Timmreck, the district court concluded that Malgeri failed to state a cognizable habeas claim. We agree. We reject Malgeri's contention that the district court erred in holding that he had failed to allege a constitutional error. Malgeri cannot convert a technical Rule 11 violation into a constitutional error simply by averring that he was otherwise unaware of supervised release and would not have pled guilty had he been so aware. See, e.g., Lucas v. United States, 963 F.2d 8, 12-15 (2d Cir. 1992); United States v. Holloway, 960 F.2d 1348, 1352-54 (8th Cir. 1992); United States v. DeLuca, 889 F.2d 503, 507-08 (3d Cir. 1989).¹ 

Malgeri also argues that he is entitled to relief from his firearm conviction 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. See United States v. Ramirez-Ferrer, 82 F.3d 1149, 1152 (1st Cir. 1996). Thus, Bailey provides no basis for relief.

In view of the foregoing, the judgment of the district court is summarily affirmed. See Local Rule 27.1.