Unpublished Disposition, 846 F.2d 1383 (9th Cir. 1988)

MEMORANDUM^** 

Ramiro Saenz Munoz appeals pro se the denial of his petition to set aside or correct his sentence. He had been indicted for possession of 3 kilograms of cocaine with intent to distribute, 21 U.S.C. § 841(a) (1) (1982), and conspiracy to possess cocaine with intent to distribute, id. Secs. 841(a) (1), 846. Appellee's Excerpt of Record (ER) at 1-2, 5. In return for the government's agreement to dismiss the conspiracy count, Saenz pleaded guilty to possession and was sentenced to 15 years in prison. He then petitioned to set aside the sentence under 28 U.S.C. § 2255 (1982). Treating the petition as a motion to correct an illegal sentence under Fed. R. Crim. P. 35(a), the district court denied it. We review the district court's denial of a section 2255 petition de novo. United States v. Quan, 789 F.2d 711, 713 (9th Cir. 1986). We review the legality of a sentence de novo, United States v. Heredia-Fernandez, 756 F.2d 1412, 1417 (9th Cir.), cert. denied, 474 U.S. 836 (1985); if we do not find the sentence to be illegal, we will reverse the district court's decision on a Rule 35 motion only for gross abuse of discretion. See United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986), cert. denied, 107 S. Ct. 1309 (1987).

A. Saenz asserts that his guilty plea was not made knowingly. First, he argues that he was not advised of "the effect of any special parole term." Fed. R. Crim. P. 11(c) (1). At the time Saenz committed the charged offense and was sentenced, however, federal law did not provide for a special parole term for violations of section 841(a) (1) involving a kilogram or more of cocaine. See Controlled Substances Penalties Amendments Act of 1984, Pub. L. No. 98-473, Sec. 502(1) (A), 1984 U.S. Code Cong. & Admin. News (98 Stat.) 2068, 2068 (amending 21 U.S.C. § 841(a) (1) (A)). Accordingly, the district court did not impose any special parole term. Saenz's claim is wholly without merit.

Saenz also argues that he was not properly advised as to the effect of a guilty plea on revocation of special parole term imposed for a prior unrelated drug conviction. Saenz was present with an interpreter, however, when counsel informed the court that a parole revocation hearing would be held sometime after the Rule 11 hearing. ER at 14. In any event, revocation of parole on the prior conviction was merely a collateral consequence of the guilty plea; Rule 11 did not require the district court to advise Saenz of that possibility. United States v. King, 618 F.2d 550, 552 (9th Cir. 1980); Sanchez v. United States, 572 F.2d 210, 211 (9th Cir. 1977).

Saenz further claims that he was advised by defense counsel that he would receive only a five to seven year sentence, and that there was an "undisclosed" agreement with the government to that effect. A guilty plea cannot stand if the defendant believed, on the advice of counsel, that the plea bargain provided for a sentencing cap and the bargain was not kept. Blackledge v. Allison, 431 U.S. 63, 75-76 (1977). The plea agreement in this case, as represented by both counsel and the government, provided only that the conspiracy charge would be dropped. The district court inquired whether Saenz was pleading guilty because of a promise of leniency or expectation of a particular sentence, and Saenz responded in the negative. ER at 16. Moreover, Saenz's counsel explained that he had "given [Saenz his] opinion as to what the possible sentences might be in this case, alerting him, of course, to the fact that it is only [his] opinion. The court is not bound by [counsel's] opinions." ER at 22. Such advice does not provide any ground for setting aside the guilty plea. United States v. Edmo, 456 F.2d 240, 241-42 (9th Cir. 1972). The record of the Rule 11 hearing renders Saenz's allegations "palpably incredible." Blackledge, 431 U.S. at 76 (citing Machibroda v. United States, 368 U.S. 487, 495 (1962)).

B. Saenz argues that he received ineffective assistance of counsel. While making a number of general accusations, he offers two particular examples of how his attorney failed him. First, he contends that counsel did not warn him that a guilty plea would bar challenges to the legality of the wiretap evidence against him, and that counsel did not adequately defend him against that evidence. The trial judge advised Saenz, however, that a guilty plea precluded any further litigation of the case and waived all defenses. Moreover, any challenge to the introduction of the informant's consensually monitored calls to Saenz would have been frivolous. See United States v. King, 587 F.2d 956, 962 (9th Cir. 1978).

Second, Saenz contends that his counsel failed to pursue an entrapment defense. At the Rule 11 hearing, however, counsel indicated that he and Saenz had discussed the possibility of such a defense and concluded that it would not be viable. ER at 20, 21-22. In light of defendant's prior conviction for cocaine smuggling and possession, that conclusion seems entirely plausible; Saenz has suggested no facts that would support entrapment. There is therefore no evidence that counsel's performance was so "deficient" as to fall "below an objective standard of reasonableness," or that any deficiency prejudiced Saenz. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

C. Finally, Saenz challenges the district court's refusal to hold an evidentiary hearing. Patently frivolous claims, however, may be dismissed without a hearing. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985). The district judge, having presided over the case, was well aware of the facts and Saenz's representations at the Rule 11 hearing, " [s]olemn declarations" that "carry a strong presumption of verity." Blackledge, 431 U.S. at 74. Denial of a section 2255 petition without a hearing is particularly appropriate where the petitioner's assertions are contrary to those he previously made under oath. Id. at 74; United States v. Rivera-Ramirez, 715 F.2d 453, 458 (9th Cir. 1983), cert. denied, 467 U.S. 1215 (1984). The district judge could properly rely on his personal recollection of the Rule 11 proceedings. Gustave v. United States, 627 F.2d 901, 903 (9th Cir. 1980). The district court did not abuse its discretion or deny Saenz due process by refusing to hold an evidentiary hearing on his motion.

AFFIRMED.