USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 95-1083
UNITED STATES OF AMERICA,
Appellee,

v.

EDWIN DIAZ-MARTINEZ, a/k/a ALEXIS EL BOXEADOR,

Defendant, Appellant.

____________________

No. 95-1536
EDWIN DIAZ-MARTINEZ,
Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Campbell, Senior Circuit Judge,
____________________
and Lynch, Circuit Judge.
_____________
____________________

James Kousouros,
_______________

with whom Debra K.

Kousouros was

on brief,

appellant.
Edwin

O. Vazquez,

Assistant United

States Attorney,

with

_________________
Guillermo Gil,
_____________

United States

Attorney, and Jose A. Quiles-Espino

______________________

Senior Litigation Counsel, were on brief, for the United States.

____________________

December 13, 1995

____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

Following

a shootout

near

the

Bayamon

Judicial

Center

defendant Diaz-Martinez was

with obliterated

forced

to

go

choosing, that

that his

that

to trial

statute

115 S.

Puerto

with

He appeals,

defense

counsel

too harsh

which

Clause

scrutiny under

(1995).

affirm.

Factual Background
__________________

not of

he

We

was

convicted

and

cannot

United States
_____________

reject his

his

at closing,

under the Guidelines,

under

Ct. 1624

Rico,

saying he was

the prosecutor improperly argued

withstand Commerce

Lopez,
_____

Bayamon,

convicted of possessing firearms

serial numbers.

sentence was

the

in

v.

claims and

The

sounds

of gunfire

and

a man1

lying

on the

ground with critical gunshot wounds evidenced a gun battle on

January

24, 1994

parking

lot

of

near

the Bayamon

the Santa

Rosa

enforcement officer leaving

the

lot, pistol

Shopping

the courthouse

and ran toward the parking lot.

through

courthouse

and in

Center.

heard the

the

law

shots

He saw the defendant running

in one

hand

probably a cellular phone, in the other.

and a

small object,

The officer saw the

defendant fire two rounds and ran after him.

____________________

1.

The defendant later told

Bayamon

police that he had gone

courthouse to pick up

this man, and

fired upon as they were leaving the building.

-2-

to the

that they were

The defendant, who was found

bushes, came

approaching

him.

out with his hands

and exclaimed

squatting behind some

up when he

that someone

saw the officer

was trying

Other officers who had heard the shots and

had seen the

to kill

one of whom

defendant with a gun also arrived at the scene.

A search of the area where the

defendant was found turned up

cellular phone and two guns.

inside.

Both smelled of gunpowder, from recent firing.

had their

were

serial

found

in

analysis later

the two

One gun had a bullet jammed

numbers obliterated.

the shopping

indicated that

pistols.

lot, inside

center

Twenty-two

parking

thirteen had been

car was also discovered

plus two nine millimeter

the same caliber as the guns.

bullets

Expert

fired from

in the parking

which were papers indicating it

to the defendant,

lot.

Both

had been rented

bullet casings

Other nearby cars

were marked

with bullet holes.

Weapons

charges were

under Puerto Rico law.

the local

the federal

court, those

filed against

the defendant

After a finding of probable cause

charges were dropped

prosecution.2

The federal

by

to accommodate

indictment was filed

____________________

2.

At the

time

of his

arrest,

the defendant

was

facing

unrelated homicide charges in the Puerto Rico local courts in

connection

with

public notoriety.
Alexis

El

murders that

had apparently

received some

Defendant says he is known in the media as

Boxeador

(Alexis

the

Boxer) and

that

recognized by some of the police under that moniker.

ultimately

acquitted of

the

murder charges

trial.

-33

after a

he

was

He was
bench

on

February

9,

possession of

1994,

firearms

charging

commencing

922(k).

terms of

45 months

release and was ordered

knowing

serial

numbers

After a

1994, Diaz-Martinez

both counts of the indictment.

concurrent

of

in foreign and interstate commerce

U.S.C.

April 26,

counts

bearing obliterated

that had been transported

in violation of 18

two

four-day trial

was

convicted on

He was sentenced to serve two

plus three

years supervised

on each conviction to pay

$3,000 in

fines and a special assessment of $50.

While this appeal was pending, the defendant

petition in the district court for collateral relief under

28 U.S.C.

by

filed

2255, arguing that

ineffective assistance

his trial had been prejudiced

of counsel.

The

district court

dismissed the

appeal

was

dismissal.

from

petition as premature, inasmuch

still

We

pending.

The

consolidated the

his convictions and

defendant

as his direct

appealed

defendant's direct

sentence with his

that

appeal

appeal from the

dismissal of the section 2255 petition.

II

A.

Sixth Amendment Right to Counsel Claim

______________________________________

Diaz-Martinez

claims that

refusing to grant him extra time to

and instead forcing him

counsel,

denied him his

choose his own attorney.

the district

court, by

seek out his own counsel

to go to trial

right under the

with court-appointed

Sixth Amendment to

His argument is without merit.

-44

Since before his February 15, 1994 arraignment, the

defendant had

When

been

the district

represented by

court

on March

attorney

3,

Mendez-Lebron.

1994, scheduled

the

defendant's trial for April 11, 1994, Mendez-Lebron was still

his counsel of record.

weeks

prior

to

trial,

However,

on March 29, less than

Mendez-Lebron

filed

motion

two

to

withdraw.

On March

hearing

on

31, 1994,

Mendez-Lebron's

the

district court

motion,

together

defendant's motion to obtain new counsel.

the

court

that

attorneys

that one

he

had

as potential

already

of them, attorney

with

the

The defendant told

contacted

replacements for

held a

several

other

Mendez-Lebron, and

Acevedo, was on

his way

to the

courthouse to be interviewed by the defendant.

The district court, after expressing

to

why

counsel,

the defendant

had

waited so

allowed Mendez-Lebron to

defendant that

he would

long

skepticism as

to ask

withdraw, but

not tolerate strategic

for new

warned the

refusals to

accept representation by particular counsel in order to delay

the

trial.

The court

adjourned to permit

the defendant an

opportunity

to

interview

reconvened later the

Acevedo

attorney

same day.

The

was unable to represent

candidates

in mind whom he wished

Acevedo,

then

defendant reported that

him, but that

he had other

to contact.

One of those

candidates was attorney Jose Gaztambide.

-55

and

The

court,

observing

that

the

trial

date

was

rapidly approaching, refused to give the defendant additional

time to

interview all of

appointed Jose Gaztambide

his potential choices

one of the attorneys specifically

identified by the defendant as

as

defendant's counsel.

court ordered that the

house

and instead

someone he planned to contact

As a further

accommodation, the

defendant, who was at the

time under

arrest in Florida, be allowed to travel to Puerto Rico

to confer

with Gaztambide in preparation for trial, and also

advised the defendant

another attorney as

did not object

accommodated the

that he

could, if he

Gaztambide's co-counsel.

to Gaztambide's appointment.

defendant and his new

so chose,

hire

The defendant

The court also

counsel by granting,

on the

The

as

defendant's motion, a two-week

trial started on April 26,

defendant's counsel.

did the

defendant

At

continuance of trial.

1994, with Gaztambide acting

no time before

advise the

district

or during trial

court that

he

was

dissatisfied with Gaztambide's representation.

That a criminal defendant

counsel

counsel."

"does not confer

an absolute right

United States v.
______________

Cir.), cert. denied, 434

____________

has an absolute right to

to a particular

Poulack, 556 F.2d

_______

83, 86

U.S. 986 (1977); see also

________

(1st

Wheat v.
_____

United States, 486 U.S. 153, 159 (1988) ("[T]he essential aim
_____________

of

the

[Sixth]

advocate for

Amendment

each criminal

is

to

guarantee

an

effective

defendant rather than

to ensure

-66

that a defendant will inexorably be represented by the lawyer

whom he

prefers.");

(1983) (Sixth

have

Morris v.
______

Amendment does

Slappy,
______

461 U.S.

not guarantee that

1,

13-14

an accused

a "meaningful relationship" with trial counsel); United

______

States v.

Betancourt-Arretuche, 933 F.2d 89,

93 (1st Cir.),

______

____________________

cert. denied,
____________

502

U.S.

959

(1991).

district

court's

decision not to permit substitution of trial counsel is given

deference

and

is reviewed

especially when

only

that decision

for

is based on

management concerns.

See Poulack,
___ _______

right

to choose

of

an accused

insisted upon in

abuse of

his

a manner that will

556 F.2d

discretion,

legitimate trial

at 86

own counsel

("[T]he

cannot be

obstruct reasonable and

orderly court procedure."); see also United States v. Pierce,

________ _____________
______

60

F.3d 886,

890-91

(1st Cir.

1995),

petition for cert.

___________________

filed, 64 U.S.L.W. ____ (U.S. Oct. 19, 1995) (No. 95-6474).

_____

The

appointment of

Gaztambide as

trial counsel did not constitute

the defendant's

an abuse of discretion

and

did not violate the

defendant's Sixth Amendment rights.

anything, the defendant was

due.

granted more choice than

____

Cf. United States v. Allen,

___ ______________
_____

789 F.2d

If

he was

90, 92-93 (1st

Cir.) (affirming denial for request for new appointed counsel

absent

(1986).

showing of

good cause), cert. denied, 479

_____________

U.S. 846

The district court gave the defendant the benefit of

-77

the

When

doubt in

allowing his

the defendant's

refused

the

first choice

representation,

understandably wary

order to permit

of

one

to replace

the

district

about the prospect of

of the

The court's

counsel

that counsel

court

was

his entire slate

decision simply

to

specifically identified as a
______________________________

candidate by the defendant himself was

___________________________________

means of expediting the

to withdraw.3

delaying trial in

the defendant to interview

alternate candidates.

appoint

original attorney

surely a permissible

process and minimizing delay.

Both

the public and

trial

the defendant

in criminal

have an interest

cases, and

the

in a

judge properly

prompt

acted to

protect that interest.

request

district

judge's

to

substitute

decision

trial

on

counsel

is

"extraordinary deference" when granting the

district

original

court's

counsel

candidates identified

waiting

make

for the

a decision

to

to

appoint

by the

defendant to

on

his

permit

own)

one

to

See Pierce, 60
___ ______

Morris, 461 U.S. at 11-12.

______

decision

and

entitled

request would be

at the expense of the court's trial calendar.

F.3d at 891; see also

________

defendant's

the

of

withdrawal

the

defendant himself

interview each

reflected a

Here, the

of

alternate

(instead of

candidate and

fair

balancing

____________________

3.

The

attorney
of

his

defendant's

stated

reason

was

that the

original

was not his choice but had been selected by another

lawyers representing

him

in

a different

criminal

matter.

-88

between the defendant's interest

in choosing his counsel and

the court's trial management needs.

86.

Cf. Poulack, 556 F.2d at

___ _______

That the defendant never objected to the appointment of

Gaztambide before or during

decision

all the

trial makes the district court's

more impervious

to the

defendant's post-

conviction attacks.

B.

The Prosecutor's Closing Argument

_________________________________

Defendant

government in

shopping

right

to

encouraged

argues

its closing

center parking

a fair

to

firearms possession,

his

participation

references

argument to

lot were

trial.

the jury

that

He

claims that

convict him

the

shootout.

by

the shootout

improper and

but on the basis

in

made

not

the

in the

tainted his

those statements

on the

basis

of

of uncharged conduct:

This

argument

is

unpersuasive.

The defendant

improper statements

made no

Bonasia
_______

the allegedly

during the closing argument,

review is only for plain error.

40 F.3d 1306,

objection to

1322 (1st

and so our

See United States v. DeMasi,

___ _____________
______

Cir. 1994), cert. denied sub nom.

_______________________

v. United States, 115 S.

______________

Ct. 947

(1995).

On the

record before us, there was no such error.

In fact,

there is no basis for concluding that the

prosecutor's statements

prosecution witnesses

deliberately

elicited

were improper at all.

concerning the

by

the

-99

shootout

defendant's own

Testimony by

some

of it

counsel

on

cross-examination

by

the

incident

defendant.

were

no

was

admitted at trial without objection

__________________

The prosecutor's

more

than

proper

comments

references

about

the

to

that

evidence.

The defendant's complaint

closing

argument

relies upon

an

about the

unrealistic

prosecution's

view of

the

firearms

charges.

The

prosecution was

defendant would have it, to saying simply

was

found in a shopping

the ground nearby.

not

limited,

that the defendant

mall parking lot,

with firearms on

Such utter elimination of

context would

have unfairly handicapped

the government's case,

unable to

defendant's trial theory

respond to the

law enforcement

officer who first found him

weapons

parking

in the

lot in

order to

this

commenting

defense,

and

it committed

on the evidence

no

leaving it

that the

had planted the

frame

government could provide the jury with a coherent

met

as

him.

story that

transgression

admitted at trial.4

The

by

See United
___ ______

States v. Garcia, 818 F.2d 136, 144 (1st Cir. 1987).

______
______

The prosecutor

also explicitly

asked the jury

to

base its verdict

on the elements of the

firearms possession

____________________

4.

The defendant also seems to suggest that

shootout

constituted

inadmissible under

references

to

Fed. R. Evid. 404(b).

evidence of the
"other

crimes"

Because, however,

the "shootout" was integrally related to the evidence linking

the

guns to

evidence

the

could not

defendant (the
have been

United States v. David, 940

______________
_____

possession charges),

barred by
F.2d 722, 737

cert. denied, 504 U.S. 955 (1992).

____________

-1010

Rule 404(b).

that
See
___

(1st Cir. 1991),

charges,

not on evidence of
___

instructions cautioning

charged with

indictment.

the shootout.5

the jury that the

any offenses other

There was

The court gave

defendant was not

than those detailed

no danger that the jury

by the government's argument to

in the

was prompted

convict the defendant on the

basis of extraneous conduct.

Finally, the defendant

claims that the

impermissibly attempted to shift the

prosecutor

burden of proof to

the

defendant by making the following statement in his closing:

Ah,

but

the

present[ed]
weapons

came

government

has

not

that

these

two

Brazil.

It's

not

evidence
from

enough that we don't

have manufacturers?

The government has to prove that it [h]as

traveled

in

commerce.

interstate

We don't

or

have to

they were brought from Brazil.

the

government's

evidence?

burden

foreign
prove that
But it is
to

bring

Of course not.

____________________

5.

The defense criticized as extremely thin the government's

evidence

that the defendant had ever fired any weapon in the

shopping

center parking

lot.

In response,

the prosecutor

commented:

And

[defendant's

firing,

firing,

counsel]

has

been talking

firing,

firing.

Ladies

gentlemen of the jury, this defendant is not

with firing
not

weapon. . . .

because I said that, [but] because

going to instruct
see [i]n

you bring a verdict of not

instruction.

But

And if you
elements

of you that

guilty, if you heard that

if you heard the instruction

government was

weapon as [you]

to all

charged

the judge is

one of the

I'm going to request

and

irrelevant,

that on the law. [Sic]

that instruction that

is firing,

the

[T]hat is

about

to prove

are going to

only possession

that
of

be instruct[ed] by the

judge,

bring

verdict

of

guilty.

[Paragraph

structure omitted.]

-1111

The context of this statement makes it clear that

improper.

discussion of

The statement

was

made

in

the interstate or foreign

the section 922(k) offense.

it was not

connection with

commerce element of

It responded to the defendant's

suggestion that the government

the guns had

fact, one

the

been brought to

of the

firearms'

Puerto Rico

from Brazil.

government's witnesses had

country

location could

had produced no evidence that

be

of

manufacture and

determined by

markings engraved on weapons

In

testified that

the

importer's

examining the

identifying

imported to this country.

The

government's response to this criticism continued:

When you

go, you

examine

this

obliterated
weapon

weapon

serial

says

located

examine

that

you

have to

to

see

the

number.

The

same

the

at Brazil.

manufacturer
That

is the

is
best

evidence and that the importer is located

at

Miami.

find out?
Rico.

What else

[do] you

No manufacturers

in

need to
Puerto

Therefore, it ha[d] to come [from]

foreign commerce or

[a] foreign

country

or interstate.

The import of these

statements was clearly that, because

no

gun

manufacturers

weapons

themselves

exist in

bore

manufactured in Brazil and

Puerto

Rico,

evidence

that

and because

they

had

the

been

imported originally to Miami, the

government did not need to produce additional or more

direct

evidence

that the guns had been brought from Brazil in order

to prove

the interstate or

section 922(k) offense.

foreign commerce element

of the

The court's instructions to the jury

-1212

as well as other portions of the government's own closing

made unmistakably

the

government

clear that

to prove

element of the offenses

the burden rested

the

defendant's

solely upon

guilt, and

with which he was charged,

each

beyond a

reasonable doubt.

C.

Sentencing Issues
_________________

1.

Criminal History Category

_________________________

The

district

court

departed

upward

Guidelines-directed

criminal history category

to

based

CHC

of

IV,

on

finding

that

from

("CHC") of II

the

former

classification did not adequately reflect

the defendant's criminal history.

The specific

departure were (1)

similar

We affirm.

grounds for the

that the defendant

criminal conduct

in conviction; and (2)

at

committed

released

court,

he

had engaged in

the

prior

offenses) that

that the defendant,

federal offense,

had

been

on bail pending trial on charges filed in the local

thus demonstrating a serious lack

judicial system and

both

district court's CHC

(including weapons

had not resulted

the time

the seriousness of

encouraged

Guidelines.

a high

grounds

See U.S.S.G.
___

____________________

of respect for the

risk of recidivism.

for

upward

departure

These

are

under

the

4A1.3(d) (Nov. 1994)6 (departure

6.

All

citations to

the Sentencing

November 1994 version, the

version in effect at the

the defendant's December 1994

v. Aymelek, 926
_______

F.2d 64,

Guidelines are

sentencing.

66 n.1 (1st

to the
time of

See United States

___ _____________

Cir. 1991)

(district

-1313

from Guidelines

CHC may

be considered where

"the defendant

was pending trial or sentencing on another charge at the time

of the [offense of conviction]"); U.S.S.G.

4A1.3(e)

(same,

where

defendant

conduct not

engaged in

resulting in

similar adult

criminal

a criminal conviction");

see also
________

United States v. Shrader, 56

______________
_______

(noting

appropriateness

of

"prior

F.3d 288, 292

"recidivist

(1st Cir. 1995)

determination"

departure decision); cf. generally United States v.

______________ _____________

994 F.2d 942, 947-49

court's

CHC

(1st Cir. 1993).

departure

was

based

on

Because

to

Rivera,
______

the district

grounds specifically

provided for by the Guidelines, we defer to and find no error

in the

district judge's determination that the circumstances

of the defendant's criminal history were understated by a CHC

of II.

See Shrader, 56 F.3d at 292 (quoting Rivera, 994 F.2d

___ _______
______

at 951-52).

2.

Guidelines Sentencing Range

___________________________

The

district

Guidelines sentencing

CHC

of IV), to impose

each conviction.

court

range of 21

departed

upward

to 27 months

concurrent sentences of

from

(assuming a

45 months on

The upward departure was the equivalent of

an increase from a base offense level of 12 to a level of 17.

The departure was permissible.

____________________

court should apply the version of the Guidelines in effect at

the time of sentencing, barring ex post facto problems).
__ ____ _____

-1414

The

court's

defendant's

departure

dissatisfaction

suggestion

decision was

with

mischaracterizes and is

sure,

the district

range

was

the

based

Guidelines

on

court did

unsatisfactory

district

more than

sentencing

conclude that

that was

the

no

contradicted by the

departure in the first place.

the court's

that

why

record.

range

To

be

the sentencing

it

entertained

What is important is that,

lucid discussion at the

as

sentencing hearing made

clear, its "dissatisfaction" was

sense of inequity,"

1449

not based on some "personal

United States v.
_____________

Wogan, 938 F.2d

_____

1446,

(1st Cir.) (quoting United States v. Norflett, 922 F.2d

_____________
________

50, 54 (1st Cir.

but rather was

1990)), cert. denied, 502 U.S.

____________

explicitly premised on

669 (1991),

features of the

case

that arecontemplated asgrounds fordeparture bythe Guidelines.

The defendant was sentenced under U.S.S.G.

Application

note 16 to

upward departure

where

that guideline

to multiple individuals."

Here, the

had

specifically permits

the defendant's

conduct "posed a substantial

underlying

risk of death or bodily

U.S.S.G.

his two

firearms

offense

injury

2K2.1, comment. (n.16).

district court expressly found

discharged

2K2.1.

in

that the defendant

a congested

shopping

center parking lot

just before he

was apprehended.

Noting

that the incident occurred during the middle of the day, that

the defendant had

run his

parking lot, and that

car into another

vehicle in

the

surrounding vehicles were riddled with

-1515

bullet holes, the court concluded that the case was factually

"out

of

the

therefore was

heartland"

of the

applicable

an appropriate candidate

guideline

for departure

and

under

application note 16.

The grounds

supported

relied upon by the

by the record and are

basis for departure

district court are

specifically permitted as a

in the commentary to section 2K2.1.

district court's determination

that this case falls

The

outside

the heartland of cases encompassed by that guideline, as well

as the magnitude

of the

departure, were

appropriate.

See
___

Rivera, 994 F.2d at 951-52.

______

D.

Constitutionality of 18 U.S.C.
922(k)
_______________________________________

Diaz-Martinez argues

that this is

a simple

state

weapons

case

which

Constitution to

under

which

he

Congress

federalize.

was

had

no

power

under

the

The firearms possession statute

convicted,

18

U.S.C.

922(k),

is

unconstitutional, he says, because it exceeds Congress' power

to

legislate under

United States v.
_____________

the

contrary.

Whatever

In Lopez,
_____

statute

"contain[ed]

at

Clause, as

interpreted in

Lopez, 115 S. Ct. 1624 (1995).

_____

invalidate 18 U.S.C.

the

the Commerce

the reach

of

We hold to

Lopez, it
_____

does not

922(k).

the Supreme Court found significant that

issue in

that

no jurisdictional

case,

18 U.S.C.

element which

through case-by-case inquiry, that the

922(q),

would ensure,

firearm possession in

-1616

question affects interstate commerce."

In contrast,

that

115 S. Ct.

jurisdictional element

is present

The statute under which Diaz-Martinez was convicted

a specific requirement that

at 1631.

here.

contains

the firearm with the obliterated

serial number have been "shipped or transported in interstate

or

foreign commerce."

18

U.S.C.

922(k).

Here there was

proof

that

the

originally to

number

in

readily

firearms

Miami, and

violation

were

in

of federal

Lopez,
_____

in

Brazil,

altered to remove

distinguishable

invalidated

made

from

and

law.

the identifying

Section

the

imported

provision

its enactment

did

922(k) is

that

not

was

exceed

Congress' authority under the Commerce Clause.

III

The Section 2255 Petition

_________________________

The

attempt to

dispositive

obtain relief

question

for

under section

the

defendant's

2255 on

grounds of

ineffective assistance of counsel is whether the petition was

prematurely

filed.

Believing that

it was,

we affirm

the

district

court's

order

dismissing

the

petition

without

prejudice.

The settled rule in

acknowledges, is

hear

claims

assistance

for

that the

relief

of counsel

unless "extraordinary

this circuit, as the defendant

district court should

based

until the

on

decline to

allegedly

ineffective

direct appeal

is decided,

circumstances" are demonstrated.

-1717

See
___

United States v.
_____________

Buckley, 847
_______

1988), cert. denied,

____________

Gordon,
______

absence

634 F.2d

of

F.2d 991, 993

n.1 (1st

Cir.

488 U.S. 1015 (1989); United States v.

______________

638,

638-39 (1st

extraordinary

Cir.

1990) ("[I]n

circumstances,

the

the

orderly

administration of criminal justice precludes a district court

from considering a

appeal

is still

2255 motion while review of

pending . . . ." (internal

and citations omitted)).

that "extraordinary

the direct

quotation marks

The district court explicitly found

circumstances" did not

exist warranting

consideration of the defendant's section 2255 petition during

the

pendency in this court of the defendant's direct appeal.

The court thus dismissed the petition, without prejudice.

There is no basis

court's

finding

circumstances."

of

for second guessing the district

an

Because

absence

the

record

of

"extraordinary

necessary

for

determination of the ineffective assistance claim has not yet

been factually developed, we decline to consider the issue at

this time,

preferring that

claim in the first

938 F.2d 302,

1079 (1992);

(1st Cir.

may

the district court

instance.

309 (1st

v. Natanel,
_______

Cir. 1991), cert. denied, 502

_____________

United States v.
_____________

1989).

See United States

___ _____________

evaluate the

Hunnewell, 891 F.2d

_________

The government concedes

U.S.

955, 956

that the petition

be refiled in the district court upon resolution of this

appeal.

-1818

Affirmed.
_________

-1919