United States Court of Appeals
For the First Circuit
No. 05-2570
UNITED STATES OF AMERICA,
Appellee,
v.
MAURICIO BERIGUETE MERAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Robert J. Ruffner and Vincent, Kantz & Ruffner on brief for
appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
September 13, 2006
Per Curiam. Defendant Mauricio Beriguete1 Meran
("Beriguete") appeals from his sentence, imposed on remand from
this court for resentencing after United States v. Booker, 543 U.S.
220 (2005). See United States v. McLean, 409 F.3d 492, 503-04 (1st
Cir.) (vacating Beriguete's 95-month sentence because of a
guidelines calculation error and remanding for resentencing without
reaching his Booker claims), cert. denied, 126 U.S. 466 (2005). In
this appeal, Beriguete argues that the 75-month sentence2 he
received on remand was unreasonably high because the district court
failed (i) to explain why its use of the 100:1 crack/powder cocaine
ratio3 was appropriate in this case and (ii) to take into account
1
According to the Presentence Report, this is the correct
spelling of defendant's surname, although it was spelled
"Berguette" in most of the filings in the district court, in this
court, and in our decision on defendant's first appeal.
2
The underlying guidelines calculations, which are not
disputed here, were as follows: the original adjusted offense
level was reduced another two levels, from level 33 to level 31,
based on this court's determination that Beriguete was entitled to
the safety valve, McLean, 409 F.3d at 503-04, resulting in a
guideline sentencing range of 108 to 135 months. The sentence was
then reduced to 76 months, based on the government's motion for a
downward departure for substantial assistance. U.S.S.G. § 5K1.1.
The ultimate sentence was lowered to 75 months to account for the
good-time credit that Beriguete lost while awaiting sentencing
pending his testimony at his codefendants' trial.
3
Under U.S.S.G. § 2D1.1(c) (Drug Quantity Table), the base
offense level for crack cocaine (cocaine base) is the same as that
for 100 times the same amount of powdered cocaine.
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his impending deportation.4 For the reasons explained below, we
reject those arguments and affirm the sentence.
As Beriguete correctly concedes, our decision in United
States v. Pho, 433 F.3d 53, 64 (1st Cir. 2006), precludes his
argument, made below, that the district court should disregard the
crack cocaine sentencing guideline as irrational in light of the
Sentencing Commission's (unaccepted) recommendation to Congress
that a 20:1 ratio apply instead of the 100:1 ratio presently used
in the guidelines. Nevertheless, he argues that the crack cocaine
guideline is not entitled to the same weight as the other
guidelines and that, therefore, the sentencing court should not
rely on it without explaining why such reliance is appropriate in
a given case.
Assuming, despite the government's colorable arguments to
the contrary, that this argument was not forfeited or waived below,
it fails on the merits. The proposition that the sentencing court
should give less weight to some guidelines than to others based on
policy considerations (such as the relative dangerousness of crack
and powdered cocaine) is antithetical to the separation of powers
principles underlying Pho, if not to its direct holding. See Pho,
433 F.3d at 61-63; see also United States v. Caraballo, 447 F.3d
26, 27-28 (1st Cir. 2006) (per curiam). As we more recently
4
Under 8 U.S.C. § 1227(a)(2), an alien who is convicted of
certain crimes, including controlled substances offenses, is
deportable.
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reiterated, "A court may sentence below the guidelines because the
guideline sentence appears unreasonable in the 'particular case[],
but not because of 'general disagreement with broad-based policies
enunciated by Congress . . . .'" United States v. Thurston, No.
05-2271, 2006 WL 2065404, at *7 (1st Cir. July 26, 2006). The
district court therefore did not err in eschewing reliance on the
crack/powder disparity in crafting an appropriate sentence.
The district court did not expressly respond to
Beriguete's second argument--that his status as a deportable alien
will make his sentence effectively more harsh than a similar
sentence imposed on a non-alien since that status will make him
ineligible for placement in a minimum security facility regardless
of his good behavior. However, one can infer that the judge was
not persuaded by that argument from his direction that defense
counsel move on to the next factor. See United States v. Jiménez-
Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc) (permitting
such inferences). The court's implicit rejection of that argument
was not unreasonable. See United States v. Guzman, 236 F.3d 830,
834 (2d Cir. 2001) (stating, pre-Booker, that "the differences in
the conditions of confinement . . . between deportable aliens and
other . . . defendants . . . are not great"). Moreover, to the
extent that such differences are attributable to generic policy
judgments as to the increased flight risk posed by aliens facing
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deportation, id., such policy judgments should not be second-
guessed by sentencing courts for the reasons discussed above.
After rejecting these arguments (and others not pressed
on appeal) for a lower sentence, the district court explained, at
length, why the 75-month sentence imposed was appropriate in light
of the factors set forth in 18 U.S.C. § 3553(a). In particular,
the court emphasized that the sentence was justified by both the
seriousness of the offense conduct (which it characterized as
"outrageous" and "reprehensible . . . in the extreme") and the
danger of harm it created to the safety and well-being of other
people in Maine. Without "minimiz[ing] in any respect the
application . . . of other factors listed in [section 3553(a)],"
the court also emphasized the need to promote respect for the law
and to provide just punishment for the offense. Finally, the court
appropriately afforded "significant weight" to the guideline
computations. See Jiménez-Beltre, 440 F.3d at 518. No further
explanation was required.
Accordingly, the sentence is affirmed. See 1st Cir. R.
27(c).
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