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[NOT FOR PUBLICATION]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 Chaf

__________________
_______________
Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.
___________

pleaded

base.

guilty to

Defendant-Appellant

three counts

He was sentenced to

Domingo Peguero

of distribution

a prison term of

of cocaine

108 months, at

the low end of the applicable guideline sentencing range.

appeals from that sentence.

He

We affirm.

I. Unconstitutional Vagueness
__________________________

Peguero's first

and sections

argument is that the

of the United States

relevant statutes

Sentencing Guidelines are

unconstitutionally

vague

adequately define

rejected

because

"cocaine base."

of

their

As Peguero

failure

to

concedes, we

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

circuit

also been rejected

court that

has considered

by every other

it.

federal

See, e.g.,
___ ____

United
______

States
______

v. Jones, 979 F.2d 317, 319-20 (3d Cir. 1992); United

_____
______

States
______

v.

Jackson, 968
_______

United States
______________

v.

F.2d

Thomas,
______

158, 161-64

932 F.2d

1085,

(2d

Cir. 1992);

1090

(5th Cir.

1991).1
1

Peguero

Sentencing

suggests

Guidelines

that

the

Commission

investigation

into

the

by

the

"disparate

treatment and arbitrary enforcement

the statute has fostered

____________________

1
1

To the

extent

that

Peguero's

argument is

challenge the distinction between cocaine

base

as

an

irrational

and

meant

to

powder and cocaine

racially

discriminatory

classification (in violation of the equal protection clause),

those arguments
United States v.
_____________

have also been

rejected by this

Singleterry, 29 F.3d 733, 740-41

___________

1994).

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court. See
___
(1st Cir.

. .

. warrants [this

court] to reconsider

reviewed the recent legislative

United States v.
_____________

Cir.

Dec.

ambiguity

Camilo, No.
______

18, 1995)

in

the

the issue."

We

developments in this area in

95-1565, slip op.

(rejecting

Guideline's

at 14

(1st

appellant's argument

that

distinction

between cocaine

powder and cocaine base entitled him to a

downward departure

pursuant

to U.S.S.G.

these developments

persuade

us that

5K2.0).

it is

None of

necessary to

revisit the

issue of

unconstitutional vagueness.

II. Failure to Depart

_________________

Peguero's second

erred

in failing

to

argument is

grant a

that

downward

the district

departure from

court

the

relevant guideline

sentencing range pursuant to

3553(b) and U.S.S.G.

5K2.0.

The sentencing court

directly respond to Peguero's oblique

based

upon the

disparity

following factors:

between sentences

powder, family

for

his drug

from an erroneous belief

addiction, the

cocaine base

court's failure to

did not

requests for departure

ties and employment record.

that the district

18 U.S.C.

and

cocaine

We are persuaded

depart did not

result

that it lacked the authority

to do

so.

The

departure.

(1st

first two

factors

See United States

___ _____________

are not

permissible bases

v. Rivera, 994
______

F.2d 942, 949

Cir. 1993)("drug or alcohol dependence or abuse

reason for imposing a

for

is not

sentence below the guidelines") and

-3-

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

than those involving cocaine.")

relating to Peguero's family

crack are

more severe

The facts and circumstances

ties and employment record were

not

sufficiently unusual

heartland.

court

to

take the

case outside

of the

See Rivera, 994 F.2d at 953 (noting that even

___ ______

misapprehended its

authority to

if

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

sentencing

third

court

argument

"impermissibly

utilized evidence of

on

appeal

referenced

is

that

the

and

in

fact

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

______

sentence be

8, 17

(1st Cir. 1991),

vacated and

"without consideration

requests that

his case remanded

of evidence

the

for resentencing

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

-4-

trial.

If

Peguero was

concerned that the information would

influence his sentence,

he ought to have requested a copy of the trial transcript and

sought a

could

continuance of

prepare

therein.

rebuttal

"Having failed

the sentencing court, they

time

to

1993).

prejudiced.

the

hearing so

information

to raise these

that he

contained

contentions before

may not be raised for

on appeal." United States

_____________

(1st Cir.

not

his sentencing

v. Jackson, 3
_______

the first

F.3d 506, 511

In any event, it is clear that Peguero was

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.

basis

As Peguero has identified no permissible

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

"attempted

final

to

usurp

powers

Naturalization Service"

in his sentence,

of

held by

the

the

by the record.

that the district court

the relevant

applied to Peguero.

that

district

court

Immigration

and

by including an order of deportation

is belied

transcript reveals

statement

argument

deportation

The

sentencing

included a clear

procedures

Therefore, there was no error.

Peguero's sentence is affirmed. See Loc. R. 27.1.

________ ___

as they

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