February 7, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1659
UNITED STATES,
Appellee,
v.
DOMINGO PEGUERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Selya, Cyr and Lynch,
Circuit Judges.
Kara M. Fay on brief for appellant.
Sheldon Whitehouse, United States Attorney, and Zechariah Chafee,
Assistant United States Attorney, on brief for appellee.
Per Curiam. Defendant-Appellant Domingo Peguero
pleaded guilty to three counts of distribution of cocaine
base. He was sentenced to a prison term of 108 months, at
the low end of the applicable guideline sentencing range. He
appeals from that sentence. We affirm.
I. Unconstitutional Vagueness
Peguero's first argument is that the relevant statutes
and sections of the United States Sentencing Guidelines are
unconstitutionally vague because of their failure to
adequately define "cocaine base." As Peguero concedes, we
rejected this argument in United States v. Barnes, 8909 F.2d
545, 552 (1st Cir. 1989), cert. denied, 494 U.S. 1019 (1990).
The argument has also been rejected by every other federal
circuit court that has considered it. See, e.g., United
States v. Jones, 979 F.2d 317, 319-20 (3d Cir. 1992); United
States v. Jackson, 968 F.2d 158, 161-64 (2d Cir. 1992);
United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir.
1991).1
1
Peguero suggests that the investigation by the
Sentencing Guidelines Commission into the "disparate
treatment and arbitrary enforcement the statute has fostered
1 To the extent that Peguero's argument is meant to
1
challenge the distinction between cocaine powder and cocaine
base as an irrational and racially discriminatory
classification (in violation of the equal protection clause),
those arguments have also been rejected by this court. See
United States v. Singleterry, 29 F.3d 733, 740-41 (1st Cir.
1994).
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. . . warrants [this court] to reconsider the issue." We
reviewed the recent legislative developments in this area in
United States v. Camilo, No. 95-1565, slip op. at 14 (1st
Cir. Dec. 18, 1995) (rejecting appellant's argument that
ambiguity in the Guideline's distinction between cocaine
powder and cocaine base entitled him to a downward departure
pursuant to U.S.S.G. 5K2.0). None of these developments
persuade us that it is necessary to revisit the issue of
unconstitutional vagueness.
II. Failure to Depart
Peguero's second argument is that the district court
erred in failing to grant a downward departure from the
relevant guideline sentencing range pursuant to 18 U.S.C.
3553(b) and U.S.S.G. 5K2.0. The sentencing court did not
directly respond to Peguero's oblique requests for departure
based upon the following factors: his drug addiction, the
disparity between sentences for cocaine base and cocaine
powder, family ties and employment record. We are persuaded
that the district court's failure to depart did not result
from an erroneous belief that it lacked the authority to do
so.
The first two factors are not permissible bases for
departure. See United States v. Rivera, 994 F.2d 942, 949
(1st Cir. 1993)("drug or alcohol dependence or abuse is not
a reason for imposing a sentence below the guidelines") and
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United States v. Haynes, 985 F.2d 65, 70 (2d Cir. 1993)
(holding that "a downward departure may not be predicated on
the fact that penalties for cocaine crack are more severe
than those involving cocaine.") The facts and circumstances
relating to Peguero's family ties and employment record were
not sufficiently unusual to take the case outside of the
heartland. See Rivera, 994 F.2d at 953 (noting that even if
court misapprehended its authority to depart, resentencing
should not be ordered if there is "no significant possibility
that the facts and circumstances would permit the district
court lawfully to order a departure").
III. Evidence from Co-Defendant's Trial
Peguero's third argument on appeal is that the
sentencing court "impermissibly referenced and in fact
utilized evidence of Appellant's alleged leadership role in
the charged offenses which were brought out in the trial of a
co-defendant [Marcelino Enrique Adames-Santos] in an entirely
separate proceeding." Peguero, relying upon United States v.
Berzon, 941 F.2d 8, 17 (1st Cir. 1991), requests that the
sentence be vacated and his case remanded for resentencing
"without consideration of evidence obtained in the Adames-
Santos trial."
Peguero made no objection at the time of sentencing,
when the court referred to the conclusions it had drawn based
on the evidence at co-defendant's trial. If Peguero was
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concerned that the information would influence his sentence,
he ought to have requested a copy of the trial transcript and
sought a continuance of his sentencing hearing so that he
could prepare a rebuttal to the information contained
therein. "Having failed to raise these contentions before
the sentencing court, they may not be raised for the first
time on appeal." United States v. Jackson, 3 F.3d 506, 511
(1st Cir. 1993). In any event, it is clear that Peguero was
not prejudiced. The court did not impose an upward
adjustment for a leadership role (despite its conclusion that
Peguero was a leader) and it sentenced him to the minimum
guideline sentence. As Peguero has identified no permissible
basis for a downward departure, he was not prejudiced by the
sentencing judge's knowledge of the evidence received at the
co-defendant's trial.
IV. References to Deportation
Peguero's final argument that the district court
"attempted to usurp powers held by the Immigration and
Naturalization Service" by including an order of deportation
in his sentence, is belied by the record. The sentencing
transcript reveals that the district court included a clear
statement of the relevant deportation procedures as they
applied to Peguero. Therefore, there was no error.
Peguero's sentence is affirmed. See Loc. R. 27.1.
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