USCA1 Opinion
November 3, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1334
JOHN J. ZULETA ALVAREZ,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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John J. Zuleta Alvarez on brief pro se.
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Richard S. Cohen, United States Attorney, and F. Mark
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Terison, Assistant United States Attorney, on brief for appellee.
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Per Curiam. Appellant John J. Zuleta-Alvarez
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appeals pro se from a district court order summarily denying
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his motion under 28 U.S.C. Section 2255 to vacate his
sentence. We affirm on the ground that the issue raised on
this appeal was not raised below.
Background
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On August 16, 1989, following a jury trial, appellant
was convicted of conspiracy with intent to distribute in
excess of 500 grams of cocaine and possession with intent to
distribute cocaine. He was tried with three co-defendants.1
The district court applied the sentencing guidelines and
sentenced appellant to 121 months in prison, at the low end
of the applicable guideline imprisonment range. The base
offense level was 32, based upon a finding, contained in the
pre-sentence report (PSI) and adopted by the court, that "the
total scope of the conspiracy involved 6.762 kilograms of
cocaine." See U.S.S.G 2D1.1(a)(3) (base offense level of
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32 where the total amount of cocaine involved in the offense
is greater than 5 and less than 15 kilograms.)
At the sentencing hearing, the central issue was the
amount of cocaine used to calculate the base offense level.
Appellant argued that the amount of cocaine actually seized
by the government (769 grams) was the proper amount of
cocaine to use in calculating the base offense level. He
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1. The remaining six co-defendants named in the indictment
pled guilty or were fugitives at the time of trial.
objected to the PSI's inclusion of an additional amount,
5.960 kilograms, based upon "historical evidence" of amounts
distributed by co-conspirators. His objections were that the
evidence was unreliable and that including these amounts
resulted in double and triple counting.
Over objection, the sentencing judge permitted the
government to introduce transcripts of trial and grand jury
testimony by witnesses who were not available for cross-
examination at the sentencing hearing. Appellant and his co-
defendants appealed that ruling. This court affirmed. See
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United States v. Zuleta-Alvarez, 922 F.2d 33 (1st Cir. 1990),
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cert. denied, _ U.S. _, 111 S. Ct. 2039 (1991). We held that
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the sentencing court did not err in denying defendants'
request for live witnesses and that there were "sufficient
indicia of reliability" to support the government's
calculation of the drug quantity.
On December 16, 1991, appellant filed a motion under 28
U.S.C. 2255 to vacate his sentence. Appellant challenged
the constitutionality of 21 U.S.C. 841, the statute under
which he was convicted. He argued that the minimum mandatory
penalties of that statute violated the Eighth Amendment's
prohibition against cruel and unusual punishment in that they
resulted in sentences disproportionate to the crime
committed. He also contended that the statute deprived him
of due process and equal protection of the law because it
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failed to take into account the purity of the drug involved,
the role of the defendant and the defendant's knowledge of
the amount of the drug involved. In an order dated March 2,
1992, the district court summarily denied appellant's motion.
Discussion
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On appeal, giving up his attack on the constitutionality
of the statute under which he was convicted, appellant argues
for the first time that the district court erroneously
applied the sentencing guidelines. Specifically, appellant
argues that the sentencing court erred in basing his sentence
upon the amount of cocaine involved in the entire conspiracy.
Relying upon Seventh Circuit case law interpreting
U.S.S.G., 1B1.3 and the commentary thereto, appellant
contends that the district court held him accountable for
conduct that was not "reasonably foreseeable" by him. He
argues that, while the conspiracy existed from July, 1988
until April, 1989, the evidence indicates that he did not
become involved until "late 1988 or early 1989." Therefore,
appellant asserts, the district court erred in calculating an
offense level based upon the amount of drugs involved in the
entire conspiracy.
Where an issue is raised for the first time on appeal,
our review is narrowly circumscribed:
We are . . . confined to determining whether or not
this is a case "'where a gross miscarriage of
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justice would occur' . . . . [and where] the new
ground [is] 'so compelling as virtually to insure
appellant's sucess.'"
Hernandez-Hernandez v. United States, 904 F.2d 758, 763 (1st
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Cir. 1990) (quoting Johnston v. Holiday Inns, 595 F.2d 890
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(1st Cir. 1979) (citations omitted)). In a recent decision
by this court, we held that "[a] sentence on a conspiracy
charge [cannot] be calculated by aggregating [drug
distributions made prior to defendant's entrance into the
conspiracy] because he was not a member of the conspiracy
when they took place." United States v. O'Campo, Nos. 91-1089
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and 91-1278, slip op. at 26 (1st Cir. Sept. 3, 1992). The
record in this case is unclear about the exact date when
defendant entered the conspiracy and whether subtracting drug
distributions which occurred before that date would reduce
his base offense level. Therefore, we are not able to
conclude that a gross miscarriage of justice occured or that
this newly raised issue is "so compelling as to virtually
insure appellant's success." Hernandez-Hernandez v. United
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States, 904 F.2d at 763 (citations omitted). Appellant is
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free to raise this issue in a new 2255 motion. We do not
now determine whether or not he would be entitled to relief.
Conclusion
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The dismissal of appellant's motion to vacate his
sentence under 28 U.S.C. 2255 is
Affirmed.
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