March 31, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1981
UNITED STATES,
Appellee,
v.
NESTOR URIBE,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on March 25, 1993, is
amended as follows:
On page 5, line 16, delete the word "other."
March 25, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1981
UNITED STATES,
Appellee,
v.
NESTOR URIBE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Nestor Uribe on brief pro se.
Lincoln C. Almond, United States Attorney, Margaret E.
Curran and James H. Leavey, Assistant United States Attorneys, on
brief for appellee.
Per Curiam. Nestor Uribe appeals pro se from the
district court's denial of his motion for modification of his
sentence and motion for reconsideration. We affirm.
Appellant was convicted on January 21, 1988, of
conspiracy and possession with intent to distribute cocaine,
in violation of 21 U.S.C. 846 and 841(a)(1) and
(b)(1)(B). The offenses for which he was convicted occurred
in August and September of 1987. Appellant filed two
motions for a new trial. Both were denied by the district
court. This court affirmed the denial of appellant's second
motion for a new trial. See United States v. Uribe, 890 F.2d
554 (1st Cir. 1989). On July 14, 1988, appellant was
sentenced to eleven years in prison and a ten-year period of
supervised release.
Appellant filed two separate motions pursuant to 28
U.S.C. 2255. The district court denied both motions. On
June 15, 1992, appellant filed a Motion for Judicial Notice
and Consideration of Sentencing Modification. The district
court denied the motion on the grounds that it was untimely
filed under Fed. R. Crim. P. 35(b). Appellant moved for
reconsideration on the basis that his motion was pursuant to
Fed. R. Crim. P. 35(a), which imposes no time limits on
filing. The district court denied appellant's motion for
reconsideration, finding that the "sentence was within the
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range of possible sentences provided by law." Uribe appeals
from the denial of the last two motions.
Appellant's motion, if pursuant to Fed. R. Crim. P.
35(b), was untimely filed. Although former Fed. R. Crim. P.
35(a), applicable to offenses committed prior to November 1,
1987, imposes no time limits on filing, it only provides for
the correction of "illegal" sentences. Appellant does not
argue that his sentence is illegal within the relatively
narrow meaning we have given to that term in the context of
Rule 35(a). See, e.g., United States v. Ames, 743 F.2d 46,
47 (1st Cir. 1984), cert. denied, 469 U.S. 1165 (1985).
Even if we construe appellant's motion as made pursuant
to 28 U.S.C. 2255, we conclude that appellant's arguments
are without merit. Appellant concedes that he was sentenced
well within the statutory limits for the crimes of which he
was convicted.1 The general rule with respect to offenses
committed before November 1, 1987, is that "the appellate
court has no control over a sentence which is within the
limits allowed by a statute." United States v. Ruiz-Garcia,
886 F.2d 474, 476 (1st Cir. 1989) (citation omitted). There
is a "narrow band of exceptions" to this rule. United States
1. At the time of appellant's offense, possession with
intent to distribute in excess of 500 grams of a mixture
containing cocaine carried a minimum sentence of five years
and a maximum sentence of forty years. 21 U.S.C. 841 (a)(1)
and b(1)(B)(ii). The maximum term of imprisonment for the
crime of conspiracy to distribute and possess with intent to
distribute was also forty years. 21 U.S.C. 846.
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v. Ponce Federal Bank, 883 F.2d 1, 5 (1st Cir. 1989).
Appellant has failed to show that his sentence falls within
that band of exceptions. We address his arguments below.
Appellant first argues that even though his offense was
committed prior to November 1, 1987, 18 U.S.C. 3553(b)
required the district court to consider the Sentencing
Guidelines in sentencing him and to explain any departure
therefrom. We reject this argument. The Guidelines apply
only to offenses committed after November 1, 1987. United
States v. Uribe, 890 F.2d at 563. "In this pre-Guidelines
case, the district court was free to disregard the Guidelines
and exercise its sound discretion in formulating a condign
sentence within the statutory limits." Id.
Appellant's second argument is that his sentence is
"disproportionate" in violation of the Eighth Amendment's
prohibition on cruel and unusual punishment. In support of
this claim, he refers to the lighter sentences received by
his co-defendants. One co-defendant received concurrent
seven-year terms of imprisonment and a four-year term of
supervised release. The other co-defendant received
concurrent nine-year terms of imprisonment and an eight-year
term of supervised release. Appellant also relies upon
sentencing data appended to his presentence report indicating
that over a two-year period the average sentence for persons
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convicted of similar crimes was 71 months and the median
sentence was 60 months.
The Supreme Court has held that the Eighth Amendment
requires a prison sentence to be proportionate to the crime
for which the defendant has been convicted. Solem v. Helm,
463 U.S. 277, 289-90 (1983). As we have previously noted,
however, the Court also advised reviewing courts to give
great deference to the broad authority of legislatures in
determining sentencing limits and of trial courts in
sentencing defendants. See United States v. Glantz, 884 F.2d
1483, 1487 (1st Cir. 1989), cert. denied, 493 U.S. 1086
(1990). "In view of this deference, successful challenges to
the proportionality of particular sentences will be
'extremely rare.'" Id. (citation omitted).
"We examine the sentence with a view to whether it is
grossly disproportionate, considering the seriousness of the
offense in relation to the harshness of the punishment." Tart
v. Massachusetts, 949 F.2d 490, 503 (1st Cir. 1991).
Compared with the facts of Solem, where the defendant
received a sentence of life imprisonment for passing a bad
check, the sentence received by appellant is substantially
less harsh and the offense is far more serious. As we said
in Tart, where no initial inference of gross
disproportionality can reasonably be drawn, there is no need
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to compare the challenged sentence with other sentences in
this or other jurisdictions. Id. n. 16.
Even if we were to engage in such a comparison, however,
appellant would not prevail on his Eighth Amendment claim.
The statistics attached to his PSI do not demonstrate the
gross disproportionality of his sentence. There is no
requirement that defendants receive a sentence equal to the
average or median sentence imposed on defendants convicted of
similar offenses. Moreover, that appellant's sentence
exceeded the average and median sentences does not indicate
that it is outside of the range of sentences imposed for the
offenses of which he was convicted, or in any other respect
grossly disproportionate to those offenses. Nor is the
appellant entitled to precisely the same sentence as others
convicted with him.
United States v. Cannistraro, 871 F.2d 1210 (3d Cir.
1989), on which appellant relies, is distinguishable. There,
the court held that appellant's sentence was not
disproportionate but that his "right to be sentenced on
accurate and reliable information" may have been violated.
The court remanded the case to the district court for
resentencing if the court relied upon statistical data
contained in the PSI setting forth sentences given to other
fraud defendants, and if it misinterpreted the meaning of the
data. There is no indication in this case that the district
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court misinterpreted the statistical data appended to
appellant's PSI or that it relied upon that data.2
Therefore, there is no showing that appellant's right to be
sentenced on accurate and reliable information was violated.
Affirmed.
2. The transcript of the sentencing hearing, if one exists,
was not filed with the district court. Therefore, it was not
available for our review. It is, of course, settled that the
appellant must bear the onus of any uncertainty arising out
of an incomplete record on appeal. See Real v. Hogan, 828
F.2d 58, 60 (1st Cir. 1987).
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United States v. Uribe
Combined Opinion