[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1918
UNITED STATES,
Appellee,
v.
MANUEL DE-LA-ROSA,
A/K/A CAYAYO,
A/K/A GREGORIO FABIAN,
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
Boudin, Stahl and Lynch,
Circuit Judges.
Joseph Frattallone-Marti on brief for appellant.
Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa
and Desiree Laborde-Sanfiorenzo, Assistant United States Attorneys, on
brief for appellee.
January 30, 1998
Per Curiam. Defendant-appellant Manuel de la Rosa
appeals from his sentence entered after his guilty plea to
three counts charging him and two co-defendants with
attempting to bring illegal aliens by boat from the Dominican
Republic into the United States, at a place other than a
designated port of entry, in violation of 8 U.S.C.
1324(a)(1)(A)(i) and 18 U.S.C. 2. Rosa appeals only one
aspect of his sentence: the district court's decision to
make an upward departure from the imprisonment range dictated
by the guidelines because the offense involved dangerous
treatment.
We have carefully reviewed the record and applied the
three-part review process established in United States v.
Diaz-Villafane, 874 F.2d 43 (1st Cir. 1989). The departure
in this case satisfies each step in the process. The
relevant guideline provision (application note 5 to 2L1.1
of the 1995 Guidelines Manual) satisfies step one of the
Diaz-Villafane analysis by specifically providing that the
circumstances relied upon by the district court are of a kind
that may appropriately be relied upon to justify departure.
See United States v. Reyes, 927 F.2d 48, 52 (1st Cir. 1991).
Step two is satisfied by the undisputed facts in the record
which support the district court's findings. Finally, the
magnitude of the departure is not beyond the realm of
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reasonableness. See id. at 53 (upholding departure which
tripled term provided by guideline range).
Rosa's complaint about an unwarranted disparity between
his sentence and the sentences received by his co-defendants
is unfounded. "Absent misapplication of the Guidelines, the
mere fact of the disparity is of no consequence." United
States v. Rodriguez, 63 F.3d 1159, 1168 (1st Cir. 1995). In
this case, there was no misapplication of the guidelines and
the record contains a fully adequate explanation for the
disparity. See United States v. Trinidad de la Rosa, 916
F.2d 27, 30 (1st Cir. 1990) (holding that co-defendant should
not receive an upward departure for dangerous conditions
where he neither owned the boat nor determined the number of
passengers). "The Constitution permits qualitative
differences in meting out punishment and there is no
requirement that two persons convicted of the same offense
receive identical sentences." Williams v. Illinois, 399 U.S.
235, 243 (1970).
Finally, Rosa's claim that the district court
impermissibly double counted by using his status as captain
of the vessel to increase his sentence in two ways, is also
without merit. "Several factors may draw upon the same
nucleus of operative facts while nonetheless responding to
discrete concerns. Consequently, a degree of relatedness,
without more, does not comprise double counting." United
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States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994). The
leadership-role enhancement and the upward departure for
dangerous treatment are "neither conceptually nor factually
equivalent." Rodriguez, 63 F.2d at 1169. There was no
double counting in this case.
Rosa's sentence is affirmed. See Loc. R. 27.1.
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