United States v. Ayala , 290 F. App'x 366 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1570
UNITED STATES OF AMERICA,
Appellee,
v.
BORIS AYALA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
B. Alan Seidler on brief for appellant and Boris Ayala on
brief pro se.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
August 28, 2008
Per Curiam. This is defendant Boris Ayala's direct
appeal from his sentence for conspiring to distribute and possess
with intent to distribute cocaine and cocaine base ("crack") and
for possessing cocaine with intent to distribute. After carefully
considering defendant's counseled and pro se briefs and the
underlying district court record, we affirm the sentence for the
reasons discussed below.
A. Issues Related to Crack/Powder Cocaine Disparity
In his counseled brief, defendant argues that the
guidelines' 100-to-1 crack/powder ratio1 violates equal protection
and due process because the recommended punishment for crack
offenses is "unconstitutionally harsh." Because this argument is
undeveloped and unsupported by any authority, we need not address
it at all. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). If we nevertheless did so, our review would be only for
plain error because, as defendant concedes, this issue was not
raised in the district court. Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 732 (1993). And, because this court
has previously upheld the constitutionality of the 100-to-1
crack/powder ratio against equal protection and Eighth Amendment
proportionality challenges, United States v. Singleterry, 29 F.3d
1Under the guidelines in effect at the time of defendant's
sentencing, the marijuana equivalent for one gram of cocaine base
("crack") was 100 times greater than for one gram of powder
cocaine. U.S.S.G. § 2D1.1, comment. (n.10, Drug Equivalency
Tables) (Nov. 1, 2006 ed.).
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733, 741 (1st Cir. 1994) (equal protection); United States v.
Graciani, 61 F.3d 70, 76-77 (1st Cir. 1995) (Eighth Amendment),
this claim would not constitute error, plain or otherwise. For the
same reason, trial counsel was not constitutionally deficient in
failing to raise this argument at sentencing, United States v.
Hart, 933 F.2d 80, 83 (1st Cir. 1991), as defendant further argues.
In his pro se brief, defendant further argues that
because the guidelines have recently been amended to reduce,
retroactively, the suggested penalties for crack offenses, his
sentence should be vacated and the case remanded to the district
court to consider whether to reduce his sentence under the amended
guidelines. That argument is misdirected. The remedy for
defendants who believe that they are entitled to a reduction of
their sentences under the amended crack guidelines is to file a
motion with the district court seeking relief under 18 U.S.C.
§ 3582(c)(2). United States v. Chandler, 2008 WL 2780632, at * 6
(1st Cir. July 18, 2008).
Defendant's final claim concerning crack/powder disparity
is that he is entitled to a remand for resentencing in light of
Kimbrough v. United States, 128 S. Ct. 558 (2007). Because his
Kimbrough claim was preserved below, a remand on this basis is
warranted unless there was no Kimbrough error, or the error was
harmless. United States v. Tabor, 531 F.3d 688, 692 (8th Cir.
July 10, 2008).
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There was a Kimbrough error. When defendant argued for
a more lenient sentence based on crack/powder disparity, the
district court stated, "[T]hat issue has been decided numerous
times; even within the context of this specific case that ratio is
appropriate," presumably referring to United States v. Pho, 433
F.3d 53 (1st Cir. 2006), and to subsequent decisions reaffirming
Pho's holding that a categorical rejection of the ratio is
impermissible but that the ratio could be considered unfair in
particular case-specific circumstances. Id. at 64-65; see also,
e.g., United States v. Fanfan, 468 F.3d 7, 15 (1st Cir. 2006).
Those comments indicate that the court believed that it was not
free to disregard the crack guideline in a "mine run" case.
Kimbrough rendered that belief erroneous. Kimbrough, 128 S. Ct. at
575.
However, the Kimbrough error was harmless because even
if the court had ignored the crack guidelines entirely and
sentenced defendant only for the amount of powder cocaine
attributable to him, his base offense level would still have been
the same.2 In other words, because "the crack/powder dichotomy is
irrelevant to the . . . sentence actually imposed in this case[,]
. . . the decision in Kimbrough is of only academic interest here."
2
The same base offense level would have applied if there were
no crack involved at all, and the only drug involved was 26.05
kilograms of cocaine. See U.S.S.G. § 2D1.1(c)(3) (providing that
Level 34 applies to "[a]t least 15 KG but less than 50 KG of
Cocaine").
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United States v. Jimenez, 512 F.3d 1, 9 (1st Cir. 2007), cert.
denied, 128 S. Ct. 2920 (2008).
B. Issues Related to Judicial Fact-Finding
In his counseled brief, defendant argues, based on
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004), that the district court
unconstitutionally enhanced his sentence based on facts found by a
judge by a preponderance of the evidence rather than by a jury
beyond a reasonable doubt. As this court explained shortly
following United States v. Booker, 543 U.S. 220 (2005), "Booker
reaffirmed the principle of Apprendi . . ., that '[a]ny fact (other
than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea
of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt,' but did so only
insofar as the sentence resulted from a mandatory system imposing
binding requirements on sentencing judges." United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005) (quoting Booker,
543 U.S. at 244). As long as the guidelines are applied in an
advisory manner, as they were here, they "'fall[] outside the scope
of Apprendi's requirement.'" Id. at 76 (quoting Booker at 543 U.S.
at 259). In other words, "Booker both created and cured the
constitutional error at the same time." United States v. Pérez-
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Ruiz, 421 F.3d 11, 15 (1st Cir. 2005). Therefore, defendant's
Apprendi-based argument fails.
To the extent that defendant separately challenges the
court's findings on procedural due process grounds, that argument
is insufficiently developed to warrant appellate consideration.
Zannino, 895 F.2d at 17. Moreover, it is belied by the record,
which demonstrates that defendant was given ample opportunity to
contest the findings made in the Presentence Report ("PSR"), which
he did in only a conclusory manner. In those circumstances, the
court was entitled to rely on the PSR. United States v. Prochner,
417 F.3d 54, 66 (1st Cir. 2005).
To the extent that defendant challenges the accuracy of
the factual findings, our review is only for clear error. United
States v. Robinson, 433 F.3d 31, 38 (1st Cir. 2005). As defendant
conceded below, a sentencing court's determination of drug quantity
"is not required to be an exact determination but rather only a
reasoned estimate." United States v. Rodriguez, 525 F.3d 85, 107
(1st Cir. 2008). And, in making such determinations, the court was
entitled to rely, in part, on hearsay evidence, including grand
jury testimony and information provided by cooperating witnesses.
United States v. Riccio, 529 F.3d 40, 47 (1st Cir. 2008) (hearsay
in general); United States v. Williams, 10 F.3d 910, 914-15 (1st
Cir. 1993) (grand-jury testimony); United States v. Jimenez
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Martinez, 83 F.3d 488, 493-94 (1st Cir. 1996) (statements of
cooperating witnesses).
Here, the district court's findings as to drug amounts
were amply supported by the evidence detailed in the PSR. Rather
than exaggerate the amounts, the PSR's estimates were expressly
"conservative" in several respects. Moreover, any minor error in
computing the drug amounts was harmless, since the same base
offense level would have applied even if the total amount was much
less than the 8,810 kilograms estimated by the PSR. See U.S.S.G.
§ 2D1.1(c)(3) (providing that level 34 applies to the equivalent of
any amount between 3,000 and 10,000 kilograms of marijuana).
To the extent that defendant challenges the court's
application of a role enhancement, any such challenge was waived by
defendant's abandonment of his prior objection to the role
enhancement once the probation officer agreed to a three-level,
rather than a four-level, enhancement. United States v. Rodriguez,
311 F.3d 435, 437 (1st Cir. 2002). Moreover, a three-level
enhancement based on a defendant's role as a "manager or
supervisor" is appropriate where, as here, "'there is evidence that
a defendant, in committing the crime, exercised control over, or
was otherwise responsible for overseeing the activities of, at
least one other person.'" United States v. Hilario-Hilario, 529
F.3d 65, 77 (1st Cir. 2008) (quoting United States v. Voccola, 99
F.3d 37, 44 (1st Cir. 1996)).
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C. Issues Related to Criminal History
Defendant argues that the district court abused its
discretion in failing to grant a downward departure under U.S.S.G.
§ 4A1.3(b)(1) or to vary below the guidelines range under 18 U.S.C.
§ 3553(a) on the ground that his criminal history category
substantially over-represents the seriousness of his criminal
history. To the extent that defendant seeks appellate review of
the district court's denial of a downward departure, such review of
that discretionary decision is unavailable. United States v.
Meléndez-Torres, 420 F.3d 45, 50 (1st Cir. 2005).
Although the district court's refusal to grant a downward
variance on that ground is reviewable for "reasonableness," such
review is limited to the "deferential abuse-of-discretion
standard." Gall v. United States, 128 S. Ct. 586, 598 (2007).
Here, the district court carefully considered this ground for
variance and plausibly explained its conclusion that defendant's
criminal history score did not over-represent his actual criminal
history. In particular, the court noted that, although five of the
prior convictions were obtained on the same day, they were the
result of five separate offenses and that, each time, despite
having been arrested and released for the previous offense,
defendant continued to commit the same type of offense again and
again. The court also noted that defendant had reentered the
country illegally after being deported and that, even after being
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arrested for the instant offenses, he was arrested in Texas with
large sums of money, indicating that he continued to engage in drug
dealing there. That explanation was procedurally and substantively
sufficient, particularly given the fact that the ultimate sentence
was within the guidelines range. Rita v. United States, 127 S. Ct.
2456, 2465, 2468 (2007).
D. Other Issues
In his pro se brief, defendant challenges his lifetime
term of supervised release on the ground that it exceeds the
statutory maximum. In making that argument, defendant relies on 18
U.S.C. § 3583(b), the general statute concerning terms of
supervised release. That reliance is misplaced. As we have
previously held, penalties for drug offenses are governed by 21
U.S.C. § 841(b), not by 18 U.S.C. § 3583(b). United States v.
Cortes-Claudio, 312 F.3d 17, 21 (1st Cir. 2002). And, under 21
U.S.C. § 841(b)(1)(A), the maximum supervised release term is life.
Id. at 22-23. Therefore, the district court did not err, plainly
or otherwise, in this regard.
The two additional arguments that defendant raised in his
pro se post-briefing letter under Rule 28(j) of the Federal Rules
of Appellate Procedure3 are deemed waived for failure to raise them
3
Those arguments are that five of defendant's prior
convictions should be counted as one offense under U.S.S.G.
§ 4A1.2(a)(2), as construed in light of amendment 709 (effective
Nov. 1, 2007), and that the case should be remanded for
resentencing on the basis of "fast-track" disparity.
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in defendant's counseled or pro se brief. United States v. Coplin,
463 F.3d 96, 102 n.6 (1st Cir. 2006), cert. denied, 127 S. Ct. 1320(2007). In any event, those arguments, which were not raised
below, were at least forfeited and fail to establish error, plain
or otherwise.
Accordingly, the district court's judgment is summarily
AFFIRMED. See 1st Cir. R. 27.0(c).
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