United States v. Guadalupe , 493 F. App'x 146 ( 2012 )

Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1827
UNITED STATES OF AMERICA,
Appellee,
v.
SAMUEL GUADALUPE,
a/k/a JOSE SANTOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
David A.F. Lewis on brief for appellant.
Mark T. Quinlivan, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief for appellee.
December 14, 2012
______________
* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
Per Curiam. After careful consideration we conclude that
this appeal presents no colorable issue for decision and,
therefore, we summarily affirm the district court's judgment. We
briefly explain this conclusion.
The defendant's principal claim of error concerns the
district court's purported use of an obstruction-of-justice
enhancement, based on the defendant's alleged perjurious testimony
at a preliminary hearing, in calculating the guideline sentencing
range (GSR). See USSG §3C1.1. This claim of error lacks force.
The challenged finding was made as part of the calculation of what
proved to be an alternate sentencing range. Later in the
sentencing hearing, the district court supportably found that the
defendant was subject to sentencing under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e), and the GSR actually used to impose
the defendant's sentence was constructed under the ACCA (without
reference to the obstruction-of-justice enhancement).
The short of it is that the district court, in fashioning
the sentence imposed, never employed the alternate GSR that it
originally calculated. It employed instead the GSR ordained by the
ACCA. That GSR was entirely independent of the obstruction-of-
justice finding. Any error in the calculation of the obstruction-
of-justice enhancement was, therefore, harmless. See, e.g.,
United States v. Leahy, 473 F.3d 401, 413 (1st Cir. 2007); United
States v. Cruz, 156 F.3d 22, 29-30 (1st Cir. 1998).
-2-
It is perhaps possible to construe the defendant's brief
as raising a different argument based on the obstruction-of-justice
enhancement. He may be arguing that the 24 months for perjury
added to his 180-month ACCA sentence should be vacated because the
statements in question were not material and because it is more
plausible that he had a hazy memory (rather than an intention to
lie). Even if we were to consider this line of reasoning, it would
be unavailing. There was no error in the perjury finding and the
added period of incarceration was warranted under 18 U.S.C.
§ 3553(a).
The defendant's other claims of error are even more
easily dispatched. To begin, he argues that the prior convictions
that were employed as predicates in order to support the imposition
of a sentence under the ACCA should have been listed in the
indictment and proved to the jury beyond a reasonable doubt rather
than simply found by the judge at sentencing. This argument is
foreclosed by Supreme Court and circuit precedent. See Almendarez-
Torres v. United States, 523 U.S. 224, 244 (1998); United States v.
Moore, 286 F.3d 47, 51 (1st Cir. 2002).
The defendant's remaining argument is that the portion of
the ACCA that was used to ensnare some of his prior convictions —
the so-called "otherwise" clause, 18 U.S.C. § 924(e)(2)(B)(ii) — is
unconstitutionally vague. This argument, too, is foreclosed by
settled precedent. See James v. United States, 550 U.S. 192, 210
-3-
n.6 (2007); United States v. Hart, 674 F.3d 33, 41 n.3 (1st Cir.
2012).
We need go no further. For the reasons elucidated above,
the judgment of the district court is summarily affirmed. 1st Cir.
R. 27.0(c).
Affirmed.
-4-