United States v. Martes Reyes ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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          No. 96-1562



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                FELIX A. MARTES-REYES,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]
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                                        Before



                                Selya, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                            and Lagueux*, District Judge.
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               Rafael Anglada-Lopez on brief for appellant.
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               Guillermo  Gil ,  United  States Attorney,  Jos  A.  Quiles-
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          Espinosa, Senior  Litigation Counsel, Sonia I.  Torres and Nelson
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          P rez-Sosa, Assistant  United States Attorneys, on  brief for the
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          United States.



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                                    June 10, 1997



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          *Of the District of Rhode Island, sitting by designation.





























                    Per Curiam.  This  is a single-issue sentencing appeal.
Per Curiam.
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          Affording de  novo review to the  district court's interpretation



          of  the sentencing  guidelines and  its application  of governing



          legal principles, see United States v. Lindia, 82 F.3d 1154, 1159
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          (1st  Cir. 1996),  we  conclude that  the court  did  not err  in



          sentencing  the  appellant to  18  months  of imprisonment  after



          revoking his probation.



                    We set the stage.  On October 14, 1992, a federal grand



          jury sitting in  Puerto Rico returned an  indictment charging the



          appellant  with  attempting  to  use  an  altered  United  States



          passport  while applying for admission to the United States.  See
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          18 U.S.C.     1543.    After some  preliminary  skirmishing,  not



          relevant  here, the appellant pled guilty.  On December 18, 1992,



          the  court sentenced the appellant  to 36 months  probation.  The



          conditions  of  his  probation   included  the  following:    the



          appellant, while on probation, would neither commit another crime



          nor illegally possess a controlled substance, and, if deported or



          granted voluntary  departure, he would remain  outside the United



          States unless  he obtained  prior written authorization  from the



          pertinent authorities and met other benchmarks.



                    On August 24, 1995,  the appellant's probation  officer



          notified the district court that the appellant had violated these



          conditions.   The probation  officer reported that,  in 1994, the



          appellant had been arrested and convicted in New York for selling



          cocaine;  and that, on March 1, 1995, Customs agents had arrested



          and charged him with unlawful entry, false use of a passport, and





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          misuse of a visa.



                    On September 21, 1995, the  district court held a show-



          cause hearing  at  which  the  court found  that  probable  cause



          existed to believe that the appellant had violated the conditions



          of his probation.  On  October 5, 1995, the court held  a further



          hearing.   At the conclusion  of this hearing,  the court revoked



          the  term of  probation  which  had  been  imposed  in  1992  and



          sentenced the appellant  to 18 months imprisonment.   This appeal



          followed.



                    Revocation  of  probation is  governed generally  by 18



          U.S.C.    3565(b)  and the  policy statements  contained in  USSG



           7B1.3.  Policy statements are advisory in nature, see USSG Ch.7,
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          Pt.A,  intro. comment.; United States v. O'Neil, 11 F.3d 292, 301
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          (1st Cir.  1993),  but when  correctly applied  they carry  great



          weight.   See Stinson v.  United States, 508  U.S. 36, 42 (1993);
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          United States v. Piper, 35 F.3d 611, 617 (1st Cir.  1994).  Under
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          them,  revocation  of probation  is  mandatory  if the  defendant



          commits a Grade  A violation,  see USSG  7B1.3(a)(1),  such as  a
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          controlled substance offense.   See 18  U.S.C.   3565(b)(1);  see
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          also 18 U.S.C.   3563(a)(3); USSG  7B1.1(a)(1)(ii).  Distributing
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          a controlled substance constitutes a controlled substance offense



          for this purpose.  See USSG  4B1.2(2).
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                    Viewed  against this  backdrop,  the  appeal is  easily



          resolved.     The  New   York  conviction  for   selling  cocaine



          constituted  all  that  was  needed  to  revoke  the  appellant's



          probation.   See 18  U.S.C.   3565(b)(1);  USSG  7B1.3(a)(1); see
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          also USSG  4B1.2(2).   The appellant's  glossover of the  cocaine
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          sale and  his concomitant  attempt to  portray himself  as having



          committed only a Grade B violation is disingenuous.  The short of



          the  matter  is  that the  cocaine  sale  constituted  a Grade  A



          violation, carrying with it a suggested  range of 12 to 18 months



          of   imprisonment   in   the    ensuing   revocation-of-probation



          proceeding.   See USSG  7B1.4(a).  The sentence that the district
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          court  meted out is within this range and is, therefore, entirely



          appropriate.1



                    We  need  go no  further.   For  the  reasons discussed



          herein, the appellant's sentence is  summarily affirmed.  See 1st
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          Cir. R.27.1.










































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               1In his  reply brief, the appellant takes  a different tack.

          He contends that he should have been sentenced based on a Grade B

          violation  because the drug offense that led to the revocation of

          probation   occurred  before  the   district  court  imposed  the

          probationary sentence.  This contention confuses the facts.   The

          court sentenced the  appellant to  serve a term  of probation  in

          1992.  The drug offense transpired almost two years later.



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