Ospina v. United States

• Court: Court of Appeals for the First Circuit
• Decided: August 24, 1993
• Docket: 92-2394
• Status: Published

Opinion

USCA1 Opinion

August 24, 1993
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 92-2394

MOISES DIEGO OSPINA,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Douglas P. Woodlock, U.S. District Judge]
                                              ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

                                 ___________________

               Moises Diego Ospina on brief pro se.
               ___________________
               A.  John Pappalardo,  United States  Attorney, and  Paula J.
               ___________________                                 ________
          DeGiacomo,   Assistant  United  States  Attorney,  on  brief  for
          _________
          appellee.

__________________

                                  __________________

Per Curiam.   Appellant, Moises Diego Ospina,  pled
                      __________

            guilty  to  four  counts  of  conspiring  to  distribute  and

            distributing  cocaine.    He  was  sentenced  to  63  months'

            imprisonment on December 18, 1990.  Appellant did not  appeal

            the sentence, but  in May, 1992 filed a motion pursuant to 28

            U.S.C.   2255 to vacate, set aside  or correct sentence.  The

            district court dismissed the petition.  We affirm.

                      Appellant raised three issues in his   2255 motion.

            First, he argued that  the sentence was imposed in  violation

            of Fed. R.  Crim. P. 32(a)(1)(A)  because the district  court

            failed  to determine that appellant had had an opportunity to

            read  his  Pre-Sentence  Report ("PSR").    Second, appellant

            contended  the  district  court  violated Fed.  R.  Crim.  P.

            32(c)(3)(D) by failing to give  him an opportunity to contest

            factual inaccuracies  in his PSR.   Finally, appellant argued

            that his sentence violated the Eighth Amendment's prohibition

            against  cruel   and  unusual  punishment   because  it   was

            disproportionate   to  the  sentence  imposed  upon  his  co-

            defendant.   We  address each  of appellant's  contentions in

            turn.

                      Fed. R. Crim. P. 32(a)(1)(A)
                      ____________________________

                      Rule  32(a)(1)(A) provides  that at  the sentencing

            hearing, and  before  imposing sentence,  the district  court

            shall "determine  that the defendant  and defendant's counsel

            have had the opportunity to read  and discuss the [PSR]."  At

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appellant's  sentencing  hearing,   the  following   exchange

            occurred between appellant's attorney, William A.  Brown, and

            the sentencing judge regarding the PSR:

                      THE COURT: Mr. Brown, have you and your client

                 had  an  opportunity  to  review   the  presentence

                 report?

                      MR. BROWN:  Yes, Your Honor.   for the record,

                 it  was sent to  him several weeks  ago in Danbury.

                 He advised me this morning that he had not received

                 it.  I don't  know why the mail hadn't  got through

                 to him in prison, but apparently it hadn't.

                      THE  COURT:  Well,  has  he  had  an  adequate

                 opportunity now to review the presentence report?

                      MR. BROWN: He has had an opportunity to review

                 the report.  And it is my understanding  that there

                 are no  additions or corrections thereto  as to any

                 factual matters set forth therein.

                      THE COURT: All right. . . .

            The  court,  after  hearing from  appellant's  counsel, asked

            appellant  directly  if  he  had  anything  further  to  say.

            Appellant spoke, through an interpreter, about the influences

            on the street that had led  him into criminal conduct and his

            regrets over that conduct.  He did not object that he had not

            seen the PSR.

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Appellant  contends on  appeal, as  he did  for the

            first time in his   2255 motion,  that he did not see the PSR

            prior to  or at his sentencing  hearing.  He argues  that the

            district court  erred by failing to ask  appellant himself if
                                                     _________

            he had reviewed  the PSR  and whether he  had any  objections

            thereto.   "However,  binding precedent  in this  circuit has

            directed  that if it is  abundantly clear from the sentencing

            hearing that both defendant and his counsel are familiar with

            the report,  a new sentencing  hearing will not  be mandated,

            even  if  the court  failed to  directly inquire  whether the
            _____________________________________________________________

            defendant had an  opportunity to review the report."   United
            __________________________________________________     ______

            States  v. Manrique,  959  F.2d 1155,  1157  (1st Cir.  1992)
            ______     ________

            (emphasis added). See United States v. Cortez, 841 F.2d  456,
                              ___ _____________    ______

            460 (2d  Cir.), cert. denied,  486 U.S. 1058  (1988) (holding
                            ____________

            that it is not necessary for the district court to personally

            question the defendant as to whether he has read the PSR).

                      In  this  case,  appellant's attorney  specifically

            stated  that  he and  his client  had  had an  opportunity to

            review the PSR.  "All that is required by Rule 32(a)(1)(A) is

            that the court  determine that the defendant and  his counsel

            have had  the opportunity  to read  and discuss  the report."

            United States v. Serino,  835 F.2d 924, 931 (1st  Cir. 1987).
            _____________    ______

            The  record indicates  that the  district court  made such  a

            determination.   Therefore,  there was  no violation  of Rule

            32(a)(1)(A).

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Fed. R. Crim. P. 32(c)(3)(D)
                      ____________________________

                 Appellant argues that the sentencing court violated Rule

            32(c)(3)(D) by failing to give  him an opportunity to contest

            factual inaccuracies in his  PSR.  Rule 32(c)(3)(D), however,

            merely  requires   that  if  defendant  alleges  any  factual
                                     __

            inaccuracies  in the PSR, "the court shall, as to each matter

            controverted, make  (i) a  finding as  to the allegation,  or

            (ii)  a  determination  that  no such  finding  is  necessary

            because  the  matter  controverted  will not  be  taken  into

            account in sentencing."  Fed. R.  Crim. P.  32(c)(3)(D).   In

            this case, defendant did  not allege any factual inaccuracies

            in the PSR.   At the sentencing  hearing, appellant's counsel

            specifically stated  with respect to the PSR  that "there are

            no additions or corrections thereto as to any factual matters

            set forth therein."  When the sentencing judge gave appellant

            an opportunity  to  speak,  he did  not  allege  any  factual

            inaccuracies or other objections to the PSR.1

                      Appellant argues that  because he was  not provided

            with a copy of  the PSR until after sentencing, he was denied

            an  opportunity  to  contest  factual  inaccuracies contained

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            1.    Appellant to date has failed to identify any factual or
            other errors in his PSR.   In his   2255  petition, appellant
            merely made the following general statement:

                 Now, that the defendant  has a copy of  the report,
                 he  has discovered  many issues  to which  he would
                 have challenged  at the  sentencing if he  had been
                 given the opportunity.

                                         -5-

therein.  Rule 32(c)(3)(A) requires that the court afford the

            defendant and his  counsel "an opportunity to comment  on the

            report  and, in  the discretion  of the  court, to  introduce

            testimony  or  other  information  relating  to  any  alleged

            factual inaccuracy contained in it."  

                      It  is   apparent  from   the  transcript   of  the

            sentencing  hearing that  the  court gave  appellant and  his

            counsel  the requisite  opportunity  to comment  on the  PSR.

            Appellant's  counsel  specifically  informed  the  sentencing

            judge  that  there  were  no additions  or  corrections  that

            appellant wished to  make to the PSR.  In  addition, when the

            court gave appellant  an opportunity to speak  on his behalf,

            he did not claim either that he had not had an opportunity to

            review  the  PSR or  that  he  had any  objections  thereto.2

            Therefore, the sentencing  court did not violate  appellant's

            rights under Rule 32(a)(3).

                      Disproportionate Sentence
                      _________________________

                      Appellant  was  arrested and  indicted  with a  co-

            defendant,  Matias  Contreras-Liriano.   While  appellant was

____________________

            2.    Appellant argues for the  first time on appeal that the
            reason he did  not inform the  court that he  had not had  an
            opportunity  to review  the PSR  was that  he does  not speak
            English  and that he was instructed by his attorney to remain
            silent except to  apologize for his  behavior when the  court
            addressed  him personally.   The  record from  the sentencing
            hearing, however,  indicates that appellant was provided with
            an interpreter.   Indeed, he  made a statement  to the  court
            through an  interpreter, during which he  could have informed
            the court  that he had not  been provided with a  copy of the
            PSR.

                                         -6-

charged  with four  counts  of conspiring  to distribute  and

            distributing cocaine,  Mr.  Contreras was  charged with  only

            three of the  counts in  the indictment.   Appellant and  Mr.

            Contreras   were  sentenced  together.    At  the  sentencing

            hearing, the court  noted that based on  the defendants' PSRs

            the  total offense  level  was 26  and  the criminal  history

            category  was one for both  defendants.  Therefore, the court

            calculated an imprisonment range of 63 to 78 months.  Neither

            defendant objected  to that calculation.   The district court

            sentenced  appellant at the low end of the guideline range to

            63  months imprisonment.    In response  to the  government's

            motion under   5K1.1 of  the Sentencing Guidelines, the court

            departed downward from the  guidelines imprisonment range and

            sentenced Mr.  Contreras to  42 months' imprisonment  to take

            account of his cooperation.  The government did not make  a  

            5K1.1 motion  with respect  to appellant, nor  does appellant

            contend that he provided the requisite cooperation.

                      Instead, appellant  complains that his  sentence is

            disproportionate to the sentence received by his co-defendant

            and other similarly situated  defendants, in violation of the

            Eighth Amendment.  He further contends, for the first time on

            appeal, that his higher  sentence is the impermissible result

            of his having  exercised his Fifth Amendment  right to refuse

            to  cooperate with  the  government by  providing information

            about his and others' involvement in the offense.

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It  is well  established that  "a defendant  is not

            entitled  to  a  lighter  sentence  merely  because  his  co-

            defendants  received  lighter  sentences." United  States  v.
                                                       ______________

            Gomez-Pabon, 911 F.2d 847, 862 (1st Cir. 1990), cert. denied,
            ___________                                     ____________

            498 U.S. 1074 (1991).   And, under the sentencing guidelines,

            disparity in sentencing outcomes as among codefendants cannot

            justify a departure  from the sentencing  range.  See  United
                                                              ___  ______

            States v.  Wogan,  938 F.2d  1446, 1448-49  (1st Cir.  1991).
            ______     _____

            Therefore, even  if appellant  and his co-defendant  had been

            similarly   situated,  the   lighter  sentence   received  by

            appellant's  co-defendant would not  establish that appellant

            received  a  disproportionate  sentence.   Nor  has appellant

            presented any other evidence that his sentence, which he does

            not deny is within the statutory limits, is disproportionate.

                      Appellant did not  raise his Fifth Amendment  claim

            in his    2255  motion.  Therefore,  it is not  cognizable on

            appeal. See Santiago v. United States, 889 F.2d 371, 377 (1st
                    ___ ________    _____________

            Cir.  1989)  (refusing  to   address  on  appeal  matter  not

            presented in appellant's    2255 petition).  Even if  we were

            to  consider it, appellant would  not prevail.   We have held

            that to deny a defendant a reduction in his offense level for

            acceptance of responsibility under    3E1.1 of the Sentencing

            Guidelines because defendant does not admit  criminal conduct

            beyond  the offense  charged  would violate  the  defendant's

            Fifth  Amendment right  not to  incriminate himself.   United
                                                                   ______

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States v. Perez-Franco,  873 F.2d 455,  463 (1st Cir.  1989).
            ______    ____________

            Here,  however,  appellant  argues   that  the  denial  of  a

            reduction in his sentence  under   5K1.1 where he  refused to

            cooperate with the  government violates the  Fifth Amendment.

            Unlike   3E1.1, which requires  admission by defendant of his

            own  criminal  activities,      5K1.1  is  "directed  to  the

            prosecution of criminal activities  by persons other than the
                                                           ______________

            defendant."   U.S.S.G.   5K1.1, application  note 2 (emphasis
            _________

            added).  Nor has appellant alleged that the government sought

            his cooperation  regarding any  offenses other than  those to

            which he pled  guilty.    Therefore, appellant  has failed to

            demonstrate  that   the  government's  failure  to  move  for

            departure  under      5K1.1  where  he refused  to  cooperate

            constitutes an impermissible penalty  for his exercise of his

            Fifth Amendment right not to incriminate himself.

                      For  the  foregoing reasons,  the  district court's

            denial of appellant's   2255 motion is affirmed.
                                                   ________

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