United States v. Peguero ( 1996 )


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  • USCA1 Opinion








    February 7, 1996
    [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT


    ____________________


    No. 95-1659

    UNITED STATES,

    Appellee,

    v.

    DOMINGO PEGUERO,

    Defendant, Appellant.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF RHODE ISLAND


    [Hon. Ronald R. Lagueux, U.S. District Judge] ___________________

    ____________________

    Before

    Selya, Cyr and Lynch,
    Circuit Judges. ______________

    ____________________

    Kara M. Fay on brief for appellant. ___________
    Sheldon Whitehouse, United States Attorney, and Zechariah Chafee, __________________ _________________
    Assistant United States Attorney, on brief for appellee.


    ____________________


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    Per Curiam. Defendant-Appellant Domingo Peguero ___________

    pleaded guilty to three counts of distribution of cocaine

    base. He was sentenced to a prison term of 108 months, at

    the low end of the applicable guideline sentencing range. He

    appeals from that sentence. We affirm.

    I. Unconstitutional Vagueness __________________________

    Peguero's first argument is that the relevant statutes

    and sections of the United States Sentencing Guidelines are

    unconstitutionally vague because of their failure to

    adequately define "cocaine base." As Peguero concedes, we

    rejected this argument in United States v. Barnes, 8909 F.2d _____________ ______

    545, 552 (1st Cir. 1989), cert. denied, 494 U.S. 1019 (1990). ____________

    The argument has also been rejected by every other federal

    circuit court that has considered it. See, e.g., United ___ ____ ______

    States v. Jones, 979 F.2d 317, 319-20 (3d Cir. 1992); United ______ _____ ______

    States v. Jackson, 968 F.2d 158, 161-64 (2d Cir. 1992); ______ _______

    United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir. ______________ ______

    1991).1 1

    Peguero suggests that the investigation by the

    Sentencing Guidelines Commission into the "disparate

    treatment and arbitrary enforcement the statute has fostered

    ____________________

    1 To the extent that Peguero's argument is meant to 1
    challenge the distinction between cocaine powder and cocaine
    base as an irrational and racially discriminatory
    classification (in violation of the equal protection clause),
    those arguments have also been rejected by this court. See ___
    United States v. Singleterry, 29 F.3d 733, 740-41 (1st Cir. _____________ ___________
    1994).

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    . . . warrants [this court] to reconsider the issue." We

    reviewed the recent legislative developments in this area in

    United States v. Camilo, No. 95-1565, slip op. at 14 (1st _____________ ______

    Cir. Dec. 18, 1995) (rejecting appellant's argument that

    ambiguity in the Guideline's distinction between cocaine

    powder and cocaine base entitled him to a downward departure

    pursuant to U.S.S.G. 5K2.0). None of these developments

    persuade us that it is necessary to revisit the issue of

    unconstitutional vagueness.

    II. Failure to Depart _________________

    Peguero's second argument is that the district court

    erred in failing to grant a downward departure from the

    relevant guideline sentencing range pursuant to 18 U.S.C.

    3553(b) and U.S.S.G. 5K2.0. The sentencing court did not

    directly respond to Peguero's oblique requests for departure

    based upon the following factors: his drug addiction, the

    disparity between sentences for cocaine base and cocaine

    powder, family ties and employment record. We are persuaded

    that the district court's failure to depart did not result

    from an erroneous belief that it lacked the authority to do

    so.

    The first two factors are not permissible bases for

    departure. See United States v. Rivera, 994 F.2d 942, 949 ___ _____________ ______

    (1st Cir. 1993)("drug or alcohol dependence or abuse is not

    a reason for imposing a sentence below the guidelines") and



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    United States v. Haynes, 985 F.2d 65, 70 (2d Cir. 1993) ______________ ______

    (holding that "a downward departure may not be predicated on

    the fact that penalties for cocaine crack are more severe

    than those involving cocaine.") The facts and circumstances

    relating to Peguero's family ties and employment record were

    not sufficiently unusual to take the case outside of the

    heartland. See Rivera, 994 F.2d at 953 (noting that even if ___ ______

    court misapprehended its authority to depart, resentencing

    should not be ordered if there is "no significant possibility

    that the facts and circumstances would permit the district

    court lawfully to order a departure").

    III. Evidence from Co-Defendant's Trial __________________________________

    Peguero's third argument on appeal is that the

    sentencing court "impermissibly referenced and in fact

    utilized evidence of Appellant's alleged leadership role in

    the charged offenses which were brought out in the trial of a

    co-defendant [Marcelino Enrique Adames-Santos] in an entirely

    separate proceeding." Peguero, relying upon United States v. _____________

    Berzon, 941 F.2d 8, 17 (1st Cir. 1991), requests that the ______

    sentence be vacated and his case remanded for resentencing

    "without consideration of evidence obtained in the Adames-

    Santos trial."

    Peguero made no objection at the time of sentencing,

    when the court referred to the conclusions it had drawn based

    on the evidence at co-defendant's trial. If Peguero was



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    concerned that the information would influence his sentence,

    he ought to have requested a copy of the trial transcript and

    sought a continuance of his sentencing hearing so that he

    could prepare a rebuttal to the information contained

    therein. "Having failed to raise these contentions before

    the sentencing court, they may not be raised for the first

    time on appeal." United States v. Jackson, 3 F.3d 506, 511 _____________ _______

    (1st Cir. 1993). In any event, it is clear that Peguero was

    not prejudiced. The court did not impose an upward

    adjustment for a leadership role (despite its conclusion that

    Peguero was a leader) and it sentenced him to the minimum

    guideline sentence. As Peguero has identified no permissible

    basis for a downward departure, he was not prejudiced by the

    sentencing judge's knowledge of the evidence received at the

    co-defendant's trial.

    IV. References to Deportation _________________________

    Peguero's final argument that the district court

    "attempted to usurp powers held by the Immigration and

    Naturalization Service" by including an order of deportation

    in his sentence, is belied by the record. The sentencing

    transcript reveals that the district court included a clear

    statement of the relevant deportation procedures as they

    applied to Peguero. Therefore, there was no error.

    Peguero's sentence is affirmed. See Loc. R. 27.1. ________ ___





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