DocketNumber： 94-1969
Filed Date： 4/13/1995
Status： Precedential
Modified Date： 9/21/2015
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1969
UNITED STATES,
Appellee,
v.
RAMON PRUDENCIO VANEGAS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________
____________________
Frank D. Inserni on brief for appellant. ________________
Guillermo Gil, United States Attorney, Warren Vazquez, Assistant _____________ ______________
United States Attorney, and Jos A. Quiles-Espinosa, Senior Litigation _______________________
Counsel, on brief for appellee.
____________________
April 13, 1995
____________________
Per Curiam. In April 1994, defendant Ramon Prudencio __________
Vanegas pled guilty to a charge of possessing, with intent to
distribute, over 100 kilograms of marijuana on board a vessel
subject to the jurisdiction of the United States, in
violation of 46 U.S.C. App. 1903(a). In August 1994, he
was sentenced to a prison term of 87 months. Throughout this
period, defendant (a 57-year-old citizen of Colombia)
suffered from a hearing impairment and a prostate
condition.1 Anticipating that his medical condition would
be a relevant factor at sentencing, he sought permission in
May 1994 to retain a physician to provide him with a complete
assessment thereof. This motion was denied, and the matter
was not thereafter pursued. Defendant now appeals, alleging
that the district court erred in denying this request. We
find no abuse of discretion and therefore affirm.
Defendant complains that the lack of a private medical
evaluation hampered his ability to argue for a reduced
sentence in light of his ailments.2 This contention falters
for at least two reasons. First, far from objecting at
____________________
1. The hearing impairment resulted in partial loss of
hearing. The prostate condition, according to defendant, was
diagnosed in a May 1994 prison medical report as benign
prostate hypertrophy (enlargement), which caused no major
pain or discomfort.
2. He similarly complains that the denial of his motion
prevented him from negotiating a more favorable plea
agreement with the government. It is difficult to understand
how, since the plea agreement was completed several weeks
before his motion was filed.
-2-
sentencing to the state of the medical evidence, defense
counsel acknowledged that the matter had been "adequately
addressed." Second, the district court ended up agreeing to
a two-level downward departure on account of defendant's
health and age (going beyond the government's recommendation
for a one-level departure in this regard). See U.S.S.G. ___
5H1.1, 5H1.4.3 It also recommended that defendant be
confined at an institution equipped with appropriate
treatment facilities. By these and other actions,4 the
court evinced an obvious appreciation of defendant's medical
situation.
Defendant also suggests that his hearing impairment
prevented him from fully understanding what transpired at
sentencing. Yet the district court was aware of this
condition, having advised the interpreter at the outset to
speak firmly since "defendant is hard of hearing."
____________________
3. Ordinarily, a defendant who receives the benefit of a
downward departure cannot appeal on the ground that the
departure was not sufficiently liberal. See, e.g., United ___ ____ ______
States v. Pighetti, 898 F.2d 3, 4 (1st Cir. 1990). Here, ______ ________
however, defendant does not appeal his sentence per se, but ______
appeals the denial of his motion for appointment of a
physician. Since the outcome is the same in any event, we
assume--but do not decide--that we have appellate
jurisdiction.
4. Shortly after entering his guilty plea, defendant had
filed a "motion requesting medical treatment" in which he
complained that prison authorities had not properly attended
to his medical needs. The court allowed the motion and
ordered that defendant be provided with whatever treatment
"his condition may require."
-3-
Defendant's replies to the court's inquiries were responsive
in nature, reflecting no difficulties in comprehension. And
neither defendant nor counsel voiced any complaint in this
regard. This contention thus falters as well.
Affirmed. See Loc. R. 27.1. ____________________________
-4-