United States v. Peguero

USCA1 Opinion









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[NOT FOR PUBLICATION]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.


____________________


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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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