United States v. Peguero
Opinion
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[NOT FOR PUBLICATION]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.
____________________
____________________
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).
-2-
. . . 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
-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 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
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