Lau v. United States

USCA1 Opinion




November 9, 1994 [NOT FOR PUBLICATION]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.


____________________


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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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