USCA1 Opinion

July 12, 1996

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
____________________

No. 95-1616

UNITED STATES OF AMERICA,

Appellee,

v.

JACINTO ORLANDO MORALES,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

__________________________
____________________

Before

Torruella, Chief Judge,

___________

Stahl and Lynch, Circuit Judges.

______________

____________________

George J. West for appellant.

______________

Margaret E. Curran, Assistant United

___________________
Zechariah Chafee,
_________________
Whitehouse, United
__________
States.

Assistant
States

United

States Attorney, with

States

Attorney, were

on

Attorney
brief for

and
the

Shel
____

Uni

____________________

____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

at

age forty-eight

Jacinto Orlando Morales, who

began his drug-related

criminal career,

was tried and convicted, at age fifty-six, of possession with

intent to

being a

distribute both

cocaine base and

felon in possession of

a firearm.

cocaine and

He

appeals from

his convictions, arguing that they should be reversed due

ineffective assistance

erred in

certain

its

instructions

evidence,

convict, that the

that

convicted

lawful

to

that the district

the jury

the evidence

and

was

prosecutor impermissibly

government's witnesses

was

of counsel,

power under

the Commerce

as

Clause.

in

to

court

admitting

insufficient

to

vouched for

the

and that the statutes

are unconstitutional

of

under which he

exceeding Congress'

In

addition, he

appeals from his sentence, which will keep him in prison past

age

seventy-one,

on the

should have departed

grounds

downward in

that

the district

light of his

age and

court

the

small amounts of cocaine he says were involved.

We affirm.

Background
__________

Local police work

Two

experienced

members

led to this

of the

federal conviction.

Providence,

Rhode Island,

Police Department investigated stories of drug trafficking by

Morales.

They obtained a search warrant for his apartment in

a three-decker tenement and drove to the residence.

Morales

leaving his building.

the warrant, informed

return to

him of

They saw

They stopped him, told him of

his rights, and

the apartment with them.

-33

asked him

Morales did so

to

and let

the two detectives into his small

apartment.

The detectives

found two bags, containing a total of over twenty-eight grams

of cocaine, hidden in a pocket hollowed out of the insulation

in the refrigerator door.

of

crack

cocaine

paraphernalia, in

between

They also found twenty-three vials

(cocaine

cabinets above

pairs of shoes on

base),

alongside

the kitchen sink.

a curtained shelf

drug

Hidden

in the bedroom

they found

fully operable

and loaded

Raven .25

caliber

semi-automatic handgun.

The defense theory was

evidence.

witness

The theory relied

who

lived

in

that the police planted the

on the testimony

Morales'

inconsistencies in the detectives'

in which the

counts:

one) and

(count

and

on

testimony about the order

about the handling

The jury convicted Morales on three of four

possession with intent

possession with

to distribute cocaine (count

intent to distribute

two), both in violation of 21 U.S.C.

possession of a firearm

in violation of 18 U.S.C.

on

building,

evidence was discovered and

of the evidence.

of a defense

by a convicted felon

922(g)(1).

cocaine base

841(a)(1); and

(count three),

Morales was acquitted

the fourth count: use of a firearm during and in relation

to

a drug

trafficking crime,

in violation

of 18

U.S.C.

924(c)(1).

At

conceded

sentencing,

that Morales

Morales'

qualified

-44

as a

counsel

appropriately

career offender

for

purposes

should

of

4B1.1,

ignore that status

quantities

court

U.S.S.G.

of drugs

but

argued

in light of

involved.

Morales requested

depart downward for two reasons.

also said

the

government's

effectively constitute a

court

the relatively small

that the

He asserted that the

career offender enhancement overstated his

He

that the

criminal history.

recommended sentence

life sentence given

his age.

would

The

court found there was, on the facts of this case, no basis to

veer from

the career offender guideline and refused to grant

a downward departure.

months

imprisonment

The

court sentenced

consecutive

to

the

Morales to

state

210

sentences

Morales was then serving, with other conditions not pertinent

here.

II

Convictions
___________

Morales'

attacks

on

his

convictions

tread

on

familiar ground and do not warrant extensive discussion.

Ineffective Assistance of Counsel

_________________________________

Morales

did not present his ineffective assistance

claim to the district court.

the

monotonous," this

claims of

has

held "that

ineffective assistance cannot make

direct review

originally

court

"With a regularity bordering on

of

criminal convictions,

be presented

to,

and acted

-55

but,

fact-specific

their debut on

rather,

upon by,

must

the trial

court."

United States v. Mala,

_____________
____

7 F.3d 1058, 1063 (1st Cir.

1993), cert. denied, 114 S. Ct. 1839 (1994).

_____ ______

This case does not fall within the exception to the

rule.

dispute

reasoned

Only "where the

and the

critical facts are

record is

consideration"

not genuinely in

sufficiently developed

will

this

court

to allow

entertain

an

ineffective

review.

Cir.

assistance

claim

United States v.
______________

raised

initially

Natanel, 938 F.2d

_______

on

direct

302, 309

1991), cert. denied, 502 U.S. 1079 (1992).

_____ ______

(1st

The alleged

ineffective assistance of counsel arose, Morales argues, from

the failure of his trial counsel to file a motion to suppress

the

evidence

resulting from

undertaken pursuant

to a

nature, this claim will

facially

375 (1986).

search

of his

valid warrant.

By

its

actual basis in fact, as well as

See Kimmelman v. Morrison, 477 U.S. 365,

___ _________
________

Thus, Morales' ineffective

assistance claim is

unsuited for consideration initially on this appeal.

Limiting Instruction
____________________

apartment

require the presentation of evidence

that it would have had some

proof of prejudice.

the

Morales argues

sua sponte
___ ______

that the

giving the jury a

it to consider

trial court erred

in not

limiting instruction directing

the parties' stipulation

that Morales was

felon only for purposes of establishing a required element in

____

the

felon-in-possession

defendant

of

firearm

cannot have his cake and eat

-66

charge.

it too.

But

the

As a result

of the stipulation, the government could

of

the

number

convictions,

and

nature

thereby

protecting

prejudice from such evidence.

in accord with our

of

not put in evidence

Morales'

prior

felony

Morales

against

undue

The stipulation was proper and

decision in United States v.

_____________

Tavares, 21
_______

F.3d 1, 4-5 (1st Cir. 1994) (en banc), where we noted that in

most,

but not all cases,

such evidence has little relevance

to the felon-in-possession charge and usually presents a risk

of unfair prejudice.

Morales now asks

court must sua

___

for a blanket

sponte give the type of

______

rule that a

trial

limiting instruction

he urges in this appeal, a

failure

to ask

failure is

for

fatal.

position he is forced into by his

such an

instruction

at trial.

See United States v. De La Cruz, 902 F.2d

___ _____________
__________

121, 124 (1st Cir. 1990) (holding that as a general

failure

of the trial court

sua sponte is
___ ______

counsel.

not reversible error).

instruction is a

"Whether an

Even so, the cure

is

he

Whether to

strategic choice by

instruction will 'cure'

exacerbate it by calling more

rule the

to give a cautionary instruction

seeks may be worse than the hypothesized disease.

seek a limiting

That

trial

a problem or

attention to it than warranted

within the ken of counsel and part of litigation strategy

and judgment.

The obligation to suggest [an instruction], if

any, rested on defense counsel."

United States v. Cartagena_____________

__________

Carrasquillo,
____________

70 F.3d

706, 713

(1st Cir.

1995).

Despite

-77

Morales'

might

argument in

well think

Morales here

that

this case,

defendants in

the limiting

other cases

instruction sought

would unnecessarily highlight

their status

by

as

felons.

Morales' post-conviction

case is no warrant for

assertion of error in this

constraining the strategic choices of

counsel in other cases.

There was no error.

Vials of Crack Cocaine

______________________

Morales says the district court

erred in admitting

into evidence twenty-three vials

of crack cocaine.

they

the transmittal

were inadmissible

accompanied the

there were

vials to

twenty vials,

because

the laboratory for

and because

He

says

sheet that

testing stated

the chemist

tested a

sample, only two, and not all twenty-three of the vials.

On

usually

go

the

to

first

the

argument, chain-of-custody

weight

admissibility; our review

of

the

is for abuse

evidence

and

attacks

not

of discretion.

to

See
___

Cartagena-Carrasquillo,
______________________

explained

that

typographical

the

70

F.3d

"20" on

error and

the

custody,

sent to

twenty-three vials.

the lab,

There

was

715.

The government

transmittal

produced

twenty-three vials were seized

in

at

testimony

sheet

that

was a

in

fact

from Morales' apartment, kept

and

that that

no abuse

lab received

of discretion

in

admitting the vials.

On the second point, Morales' argument assumes that

the

government

had

to

show that

-88

all

twenty-three

vials

contained crack.

only have

To convict Morales,

found that

controlled

substance.

however, the jury need

defendant possessed some

See 21 U.S.C.
___

amount of

841; United States v.

_____________

Barnes, 890 F.2d 545, 551-52 & n.6 (1st Cir. 1989),
______

1019 (1990).

the

While undoubtedly relevant

precise quantity

and

nature of

the

494 U.S.

to the sentencing,

substance, be

cocaine or cocaine base, was not an element of the crime

the

jury to decide.

but only two vials

That twenty-three

it

for

vials were admitted

were tested thus could not

have amounted

to reversible error.

Firearm
_______

Morales challenges

authentication

the admission of the handgun on

grounds, pointing

of the

discovery

of the evidence and the absence of an evidence tag

for abuse of

F.2d

1458,

(1992).

detectives as

the order

Our review on this evidentiary

discretion.

1467

to

in the

testimony

on the handgun.

two

to inconsistencies

See United States

___ _____________

(1st Cir.),

cert.
_____

denied,
______

of

the

question is

v. Abreu,
_____

503

952

U.S. 994

The trial judge admitted the gun into evidence after

hearing testimony

that it

was the same

gun the

detectives

discovered, the gun had the same serial number, and it was in

the

same condition

as when discovered.

The

serial number

evidence alone arguably provided sufficient authentication in

light of

to

the legal requirement imposed

place an

indelible,

non-duplicating

on gun manufacturers

individual

serial

-99

number on all firearms.

See 27 C.F.R.
___

179.102; see also 26

___ ____

U.S.C.

5842(a).

There was no abuse of discretion.

Sufficiency of the Evidence

___________________________

In

look

at

reviewing the

the evidence

evidence in

and

would allow

a rational jury

See
___

F.3d 1142, 1149

cert. filed, 64 U.S.L.W.

_____ _____

Here, there was no

evidence, we

inferences from

favorable to the

a reasonable doubt.

Mosquera, 63
________

1775).

reasonable

the light most

determine if it

beyond

sufficiency of the

prosecution to

to find

United States
_____________

(1st Cir. 1995),

the

guilt

v. Luciano________

petition for
________ ___

3765 (U.S. Apr. 26, 1996)

(No. 95-

dispute that Morales lived in the

apartment and was its sole occupant.

That is where the drugs

were found, some of which were hidden, with some effort, in a

refrigerator door.

view.

The gun

The jury could

knowing

believed the

building

occupant

v.

("Credibility

province,

can

gun and the

77

F.3d

drugs, and need

the

defense.

6,

10

determinations are uniquely

plain

Morales was in

somewhat incoherent testimony

proffered by

Calderon,
________

out of

reasonably infer that

possession of both the

not have

States
______

was also hidden,

(1st

of the

See
___

United
______

Cir.

1996)

within the jury's

and we defer to the jury's verdict if the evidence

support

varying

citation omitted)).

Prosecutor's Closing
____________________

inferences."

(quotation

marks

and

-1010

Morales argues that the prosecution, in its closing

rebuttal,

police

improperly

witnesses.

vouched

In

for

the

particular,

credibility of

Morales

points to

prosecutor's final argument:

They're not,
the
risk

I submit to you, members of

jury, they're not

of

perjuring

going to

run the

themselves

and

its

the

jeopardizing

their

They're doing
day in
these

over

what they do.

and day
search

out.

they found.

decision.

I submit

credible officers
the one

day

they were working

to

out with

make arrests
This is what
you

they're

who testified credibly

in their

lives that

as police officers and

they told you what they found.

to ask you to find

this.

They do it

They go

warrants and

and you make the

about

careers

I'm going

the Defendant guilty.

Thank you.

As

Morales

statements,

made

no

contemporaneous

objection

review is for plain error.

to

these

See United States v.

___ _____________

Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir. 1996).

___________

Morales'

planted the firearm

subsequently lied

theory of

the case

and illegal drugs

was that

the police

in his apartment

at trial in testifying

and

that they belonged

to

Morales.

The credibility

of the

"Improper vouching

occurs where the

`prestige

government

of

the

personal assurances

about the

police was

at issue.

prosecution places

behind a

witness

by

witness' credibility.'"

the

making

Id.
___

(quoting

United States v. Neal, 36 F.3d 1190, 1207 (1st Cir.

_____________
____

1994)).

The prosecution,

theory by

pointing out that

in responding to

the defendant's

the police officers

-1111

had little

incentive

to

lie,

assurances."

Cf.
___

was

arguably

id.
___

not

(prosecution's

"making

argument

personal

that

its

witnesses were speaking the truth

because they had reason to

do

attack on

so, made

in

credibility, was

response to

an

not improper

vouching).

the

witnesses'

Nevertheless,

as

the government appropriately conceded at oral argument, there

were statements

testified

truthfully,"

disapproved in

States
______

in the prosecution's closing,

of

the past as

v. Wihbey, 75 F.3d
______

type

that

such as "[h]e

this

improper vouching.1

761, 771-73 (1st

court

has

See United
___ ______

Cir. 1996); see

___

also United States v. Sullivan, __ F.3d __, __, Nos. 95-1719,

____ _____________
________

95-1760, slip op. at 18 (1st

line

between proper

Cir. 1996) (there can be a fine

arguments

in

response to

credibility

attacks on government witnesses and improper vouching).

In

this case,

however, the

prosecutor's comments

"did not impact the

fairness, integrity or public reputation

of

and so

the proceedings

error."

should not

be noticed

Sullivan, __ F.3d at __, slip op. at 19.

________

even assuming that the

prosecutor's comments were

there was no reversible error.

72.

Constitutionality of the Statutes

_________________________________

as plain

Therefore,

improper,

Cf. Wihbey, 75 F.3d at

___ ______

771-

____________________

1.

The

United

prosecutors

States

in that

represented at

office

oral

were undergoing

argument
"training"

that
to

ensure that such statements were not made in the future.

-1212

Morales

statute, 18

U.S.C.

statute, 21 U.S.C.

challenges

both

922(g)(1), and

the

the

felon-in-possession

drug

trafficking

841(a)(1), as being unconstitutional

in

light of the analysis employed in United States v. Lopez, 115

_____________
_____

S. Ct. 1624 (1995).

The challenge to the constitutional validity of the

felon-in-possession

statute,

18

U.S.C.

922(g)(1),

is

foreclosed by United States v. Abernathy, __ F.3d __, __, No.

_____________
_________

95-1720, slip op. at 5-6 (1st Cir. 1996) and United States v.
_____________

Bennett, 75 F.3d 40, 49 (1st Cir. 1996).

_______

We decline

to entertain the challenge

statute,

21 U.S.C.

841(a)(1),

fashion,

is

lacking

focusing on

first

wholly

in

which is

time on appeal.

made in

developed

that particular statute,

to the drug

argumentation

and is raised

See Argencourt v.
___ __________

summary

for the

United States, 78
_____________

F.3d 14, 16 n.1 (1st Cir. 1996) (arguments mentioned, but not

developed, are deemed waived);

74 F.3d

8, 14 (1st

cf. United States v. Carvell,

___ _____________
_______

Cir. 1996).

There was no

plain error.

United States v. Olano, 507 U.S. 725, 736 (1993).

_____________
_____

III

Sentence
________

Morales

ruled

that it

was

argues that the district court erroneously

powerless to

applicable career offender range.

court's

decision rested

on its

-1313

depart

downward from

the

To the extent the district

belief that

it

lacked the

power to depart, we

have jurisdiction over the appeal.

United States v. Lombard,

_____________
_______

72 F.3d 170, 184 (1st

See
___

Cir. 1995).

However, we lack jurisdiction if the district court was aware

of its

authority to

discretion to do

127, 130 (1st

misapprehended

so.

depart,

to exercise

its

See United States v. Morrison, 46 F.3d

___ _____________
________

Cir. 1995).

its

but declined

To determine

authority

to depart

whether the

or

exercised

court

its

discretion not to depart, we

look to the sentencing

remarks within the context of the record.

The record reveals that

power

to grant

judge's

See id. at 130-31.

___ ___

the district court was aware

Morales a

downward

departure, but

of its

did not

think departure was warranted in the factual circumstances of

this case.

At

departure

because

sentencing,

for

downward

Primarily, he argued that

his prior drug convictions

were minor, his case was

1993).

In

United States v. Reyes, 8 F.3d

_____________
_____

Reyes, as a
_____

offender provision, U.S.S.G.

minor

argued

on a number of grounds.

similar to that of

Cir.

Morales

drug trafficking

result of applying

1379 (9th

the career

4B1.1, to a defendant's prior

offenses, the

applicable sentencing

range was increased

from a

month

at 1381-82.

range.

Id.
___

33-41 month range

The district

decided that although the career offender

it was

41

to a

210-262

court there

guideline applied,

going to depart downward to a sentence within the 33-

month

range.

See
___

id.
___

at 1383.

-1414

The

basis for

the

departure

was

defendant's

that

previous

the

Guidelines'

criminal

treatment

of

history overrepresented

true seriousness. See U.S.S.G.

___

the

its

4A1.3, 5K2.0; Reyes, 8 F.3d

_____

at 1383-84.

The

district court

on Reyes.
_____

Reyes
_____

sentencing

transcript

here

shows

carefully considered Morales'

that

the

argument based

In fact, the court recessed specifically to review

and the

other

cases cited

by

Morales.

After

the

recess, the court explained that it did not consider Morales'

previous

drug

convictions

minor,

that

Morales'

criminal

history suggested a "lack of regard for the law or the people

. . . being poisoned by this stuff," and that the enhancement

required by the

110-137

months

career offender guideline

to

210-262

disproportionate result.

think

months)

(from a range

did

not

create

of

The court concluded that it did not

that the defendant's

Guidelines sentencing

range was

"subject

to departure in these circumstances, and . . . that

______________________

there[]

[was] no basis for departure under the facts of this

_______________________

case."
____

(emphasis

added).

The

district

recognized

its authority to

depart, but did

the

or circumstances

of

facts

this

court

clearly

not think that

case merited

such

-1515

departure.2

Therefore, we

lack

jurisdiction

to consider

Morales' sentencing appeal.

Morales argues

erroneously

thought that

in passing that

it could

the district court

never grant

a departure

based on age.

Morales misunderstands the district court.

In

response to Morales' argument at sentencing that he should be

granted

leniency

sentencing

district

and

court

because

would

explained,

Norflett, 922 F.2d

________

Guidelines

be

50, 53

he

was

sixty

seventy-one

quoting

at

when

from

(1st Cir. 1990),

the

time

released,

of

the

United States
_____________

v.

that under

the

it could not depart merely because it thought the

sentence was excessive.

Norflett explicitly says that age is

________

a disfavored reason for departure, and can be considered only

in circumstances

54.

The

of "substantial

Norflett court held

________

defendant was thirty-four when

atypicality."

that the

See
___

mere fact

id. at
___

that the

sentenced and would be fifty-

four when released, did not constitute unusual circumstances.

We have no reason to believe that the district court in

case

misapprehended

its

authority

to

depart

on

this

the

(disfavored) ground of age.

Affirmed.
________

____________________

2.

Since

the sentencing

that a district
where

in this

court has the

career offender

case, we

have recognized

authority to depart

criminal

history

overrepresents a defendant's criminal history.

category of

VI

United States
_____________

v. Lindia, 82 F.3d 1154, 1164-65 (1st Cir. 1996).

______

-1616

downward