November 9, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1358
MICHAEL A. LAU,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Michael A. Lau on brief pro se.
Guillermo Gil, United States Attorney, Antonio R. Bazan,
Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior
Litigation Counsel, on brief for appellee.
Per Curiam. Michael Lau and his codefendant Bruce
Taylor were each convicted in December 1985 at a joint trial
on drug charges. Lau was sentenced to 35 years and Taylor to
25 years and their convictions were affirmed on appeal.
United States v. Lau, 828 F.2d 871 (1st Cir. 1987), cert.
denied, 486 U.S. 1005 (1988). Based on subsequent
cooperation, the sentences were later reduced, Lau's to 25
years and Taylor's to 15 years. Lau now appeals the denial
of his recent motion under 28 U.S.C. 2255 in which he
challenged the 10 year disparity in his sentence as compared
with that of Taylor. He claims that the two were similar in
culpability and history and that the only explanation for the
disparity is the trial judge's remarks at Taylor's
sentencing, that suggested that Taylor was led astray by Lau.
This, says Lau, is untrue.
The Sentencing Guidelines did not apply to this case and
the sentencing judge therefore had extremely wide discretion,
largely beyond appellate review. See Williams v. Illinois,
399 U.S. 235, 243 (1970). The Supreme Court did say, in
United States v. Tucker, 404 U.S. 443, 447 (1972), that an
appellate remedy may be available where a pre-guideline
sentence is founded upon "misinformation of constitutional
magnitude"; but in that case the sentencing judge had relied
on two prior convictions that had been unconstitutionally
obtained. "Instead of confronting a defendant who had been
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legally convicted of three previous felonies, the judge [if
properly informed] would then have been dealing with a man
who, beginning at age 17, had been unconstitutionally
imprisoned for more than ten years . . . ." Id. at 448.
Lau's case is not remotely comparable. The
responsibility of one person for another's misconduct is
generally a matter of degree and of judgment. Tucker
involved the perpetuation of prior convictions that were
later found to be unconstitutional. Further, the Supreme
Court thought that the prejudice in Tucker was patent. Here,
the fact that the remark was made at Taylor's sentencing,
rather than Lau's, suggests that the court's impression is
more likely to have reduced Taylor's sentence than to have
enlarged Lau's. Assuming that there was any misappraisal at
all, we do not think that it is of constitutional magnitude.
There is some suggestion in Lau's brief that he thinks
that he was entitled to be present at Taylor's sentencing to
contest the judge's remarks about Lau's influence on Taylor.
Fed. R. Crim. P. 43(a) entitles a defendant to be present at
his own sentencing and not that of another defendant. It is
in fact common practice for codefendants to be sentenced at
different times, depending on when the respective probation
reports are completed.
Affirmed.
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