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[NOT FOR PUBLICATION]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. Baz
______________
_________________
Assistant United States Attorney, and Jose A. Quiles-Espinosa, Sen
_______________________

Litigation Counsel, on brief for appellee.

____________________
____________________

Per Curiam.
___________
Taylor

years

486

convictions

Lau, 828
___

U.S.

cooperation, the
years

and

his codefendant

Bruce

Lau was sentenced to 35 years and Taylor to

and their

United States v.
_____________
denied,
______

Lau

were each convicted in December 1985 at a joint trial

on drug charges.
25

Michael

1005

were

affirmed on

F.2d 871 (1st

(1988).

sentences were

and Taylor's to 15 years.

Cir. 1987),

Based

on

appeal.
cert.
_____

subsequent

later reduced, Lau's

to 25

Lau now appeals the denial

of his

recent

motion under

28 U.S.C.

challenged the 10 year disparity in

with that

of Taylor.

2255

in which

he

his sentence as compared

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
399 U.S.

appellate review.

235, 243

(1970).

sentence

remedy

may

is founded

two prior

obtained.

where

upon "misinformation

convictions

Court did say,

U.S. 443, 447

be available

magnitude"; but in that case

on

Williams v. Illinois,
________
________

The Supreme

United States v. Tucker, 404

______________
______
appellate

See
___

in

(1972), that an
a

pre-guideline

of constitutional

the sentencing judge had relied

that had

"Instead of confronting

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been unconstitutionally
a defendant who had been

legally convicted
properly
who,

of three previous felonies,

informed] would then

beginning

at

age

have been dealing

17,

had

been

case

responsibility
generally

involved

the

later

is

of one
matter of

not

remotely

person
degree

perpetuation of

found to

for
and
prior

be unconstitutional.
________________

with a man

unconstitutionally

imprisoned for more than ten years . . . ."

Lau's

the judge [if

Id. at 448.
___

comparable.

The

another's misconduct

is

of

judgment.

convictions
Further,

Tucker
______
that were

the Supreme

Court thought that the prejudice in Tucker was patent.

______
the fact

that the

rather than

remark was made

Lau's, suggests

more likely to
enlarged Lau's.

at Taylor's

that the court's

have reduced Taylor's

Assuming that

Here,

sentencing,
impression is

sentence than to

have

there was any misappraisal at

all, we do not think that it is of constitutional magnitude.

There
that

is some suggestion in

Lau's brief that he thinks

he was entitled to be present at Taylor's sentencing to

contest the judge's remarks

Fed. R. Crim. P.

about Lau's influence on Taylor.

43(a) entitles a defendant to be present at

his own sentencing and not that of another

in fact common

practice for codefendants to

different times, depending

reports are completed.

defendant.

It is

be sentenced at

on when the respective

probation

Affirmed.
________

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