United States v. Uribe, 1st Cir. (1993)

USCA1 Opinion
March 31, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No.
92-1981
UNITED STATES,
Appellee,
v.
NESTOR URIBE,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this
amended as follows:
Court issued
on
March 25,
On page 5, line 16, delete the word "other."
1993, is
March 25, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
___________________
No. 92-1981
UNITED STATES,
Appellee,
v.
NESTOR URIBE,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, U.S. District Judge]
___________________
___________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
___________________
Nestor Uribe on brief pro se.

____________
Lincoln C. Almond, United States Attorney, Margaret E.
__________________
____________
Curran and James H. Leavey, Assistant United States Attorneys, on
______
_______________
brief for appellee.
__________________
__________________
Per Curiam.
___________
Nestor Uribe
appeals
pro se
___ __
from the
district court's denial of his motion for modification of his

sentence and motion for reconsideration.
Appellant
was
convicted
on
We affirm.
January
21,
1988,
of
conspiracy and
in
violation
possession with intent to distribute cocaine,

of
21
U.S.C.
846
(b)(1)(B). The
offenses for which he
in
September
August and
motions
for a new
court.
motion for a new trial. See

___
554
(1st
sentenced
Cir.
1989).
Appellant
Both were
This court affirmed the
841(a)(1)
and
was convicted occurred
of 1987.
trial.
and
filed
two
denied by the district
denial of appellant's second
United States v. Uribe, 890 F.2d

_____________
_____
On
July
14,
1988, appellant
was
to eleven years in prison and a ten-year period of
supervised release.
Appellant
U.S.C.
2255.
filed
two separate
The district
under Fed.
a Motion for Judicial
Sentencing Modification.
court denied the motion

filed
R. Crim.
R.
filing.
Crim. P.
The
P. 35(b).
35(a), which
district court
reconsideration, finding
to 28
Notice
was untimely
Appellant
moved for
his motion was pursuant to

imposes
no time
denied appellant's
that the "sentence
-3-
On
The district
on the grounds that it
reconsideration on the basis that

Fed.
pursuant
court denied both motions.
June 15, 1992, appellant filed

and Consideration of
motions
limits on
motion for
was within
the
range of possible sentences provided by
law."
Uribe appeals
from the denial of the last two motions.

Appellant's
35(b),
motion, if
pursuant
was untimely filed.
P.
committed prior to November 1,
imposes no time limits on filing, it only provides for
the correction
argue
R. Crim.
Although former Fed. R. Crim. P.
35(a), applicable to offenses

1987,
to Fed.
of "illegal"
that his
sentence
sentences.
is illegal
narrow meaning we have given

Rule 35(a).
See,
___
Appellant
within the
does not
relatively
to that term in the context
e.g., United States v. Ames,

____ _____________
____
of
743 F.2d 46,
47 (1st Cir. 1984), cert. denied, 469 U.S. 1165 (1985).

_____ ______
Even if we construe
to 28
U.S.C.
2255,
are without merit.
appellant's motion as made pursuant
we conclude that
Appellant
well within the statutory

was convicted.1
committed
court
has no
limits allowed
886
is
concedes that he was sentenced
limits for the crimes of
The general rule
before November
control over
appellant's arguments
1, 1987,
with respect to
is that
a sentence
which he
offenses
"the appellate
which is
within the
by a statute." United States v. Ruiz-Garcia,

______________
___________
F.2d 474, 476 (1st Cir. 1989) (citation omitted).
There
a "narrow band of exceptions" to this rule. United States

_____________
____________________
1.
At the time of appellant's offense, possession with
intent to distribute in excess of 500 grams of a mixture
containing cocaine carried a minimum sentence of five years
and a maximum sentence of forty years. 21 U.S.C.
841 (a)(1)
and b(1)(B)(ii).
The maximum term of imprisonment for the
crime of conspiracy to distribute and possess with intent to
distribute was also forty years. 21 U.S.C.
846.
-4-
v.
Ponce Federal Bank, 883

____________________
Appellant has failed
F.2d
1,
(1st Cir.
to show that his sentence
1989).
falls within
that band of exceptions. We address his arguments below.

Appellant first argues that
committed
required
prior to
the
Guidelines
therefrom.
only
States
______
November 1,
district
court
in sentencing
We reject
to offenses
even though his offense was

1987, 18
to
him and
consider
v. Uribe, 890 F.2d

_____
at 563.
the
to explain
this argument.
committed after
U.S.C.
3553(b)
Sentencing
any departure
The Guidelines apply
November 1,
1987. United
______
"In this pre-Guidelines
case, the district court was free to disregard the Guidelines

and exercise
its sound
discretion in formulating
sentence within the statutory limits." Id.
a condign
___
Appellant's
second argument
"disproportionate"
prohibition
this
his
in violation
terms of
punishment.
imprisonment
release.
The
his sentence
the Eighth
Amendment's
In support of
received
and a
other
is
sentences received by
One co-defendant
concurrent nine-year terms of

of
that
to the lighter
co-defendants.
supervised
term
of
on cruel and unusual
claim, he refers
seven-year
is
concurrent
four-year term
co-defendant
of
received
imprisonment and an eight-year
supervised release.
Appellant
also relies
upon
sentencing data appended to his presentence report indicating

that over a two-year period the average sentence
for persons
-55
convicted
of
similar crimes
was 71
months and
the median
sentence was 60 months.

The
requires a
for which
Supreme Court
has held
that the
Eighth Amendment
prison sentence to be proportionate

the defendant has
to the crime
been convicted. Solem
v. Helm,
_____
463 U.S.
277, 289-90 (1983).
however,
the Court
great
also
deference to
determining
As we
have previously
advised reviewing
the broad
sentencing
and
of
noted,
courts to
authority of
limits
____
give
legislatures in
trial
courts
in
sentencing defendants. See United States v. Glantz, 884 F.2d

___ ______________
______
1483, 1487
(1990).
the
(1st
Cir. 1989),
cert.
_____
denied, 493
______
U.S.
1086
"In view of this deference, successful challenges to
proportionality
of
particular
sentences
will
be
'extremely rare.'" Id. (citation omitted).

___
"We
grossly
examine the sentence with
a view to
whether it is
disproportionate, considering the seriousness of the
offense in relation to the harshness of the punishment." Tart

____
v.
Massachusetts,
_____________
Compared
with
received
a sentence of
check, the
the
949
F.2d
facts
490,
of
Solem,
_____
where
by appellant
less
harsh and the offense is far
in
Tart,
____
no
(1st
initial
disproportionality can reasonably be
-66
Cir.
the
life imprisonment for
sentence received
where
503
1991).
defendant
passing a bad
is substantially
more serious.
inference
As we said
of
gross
drawn, there is no need
to compare
the challenged
sentence with other
this or other jurisdictions.
sentences in
Id. n. 16.
___
Even if we were to engage in such a comparison, however,

appellant would
The statistics
gross
not prevail
attached to
disproportionality
requirement that
on his Eighth
Amendment claim.
his PSI
do not
his
sentence.
of
demonstrate the
There
defendants receive a sentence
is
no
equal to the
average or median sentence imposed on defendants convicted of

similar
offenses.
exceeded the
Moreover,
appellant's
average and median sentences
that it is outside of the

offenses of which he
grossly
that
appellant entitled
does not indicate
range of sentences imposed for the
was convicted, or in any
disproportionate
sentence
to
those
other respect
offenses.
to precisely the same
Nor
is
the
sentence as others
convicted with him.

United States v.
______________
Cannistraro, 871
___________
F.2d 1210
(3d Cir.
1989), on which appellant relies, is distinguishable.

the
court
held
disproportionate
that
but
appellant's
that his
"right
sentence
to
There,
was
be sentenced
not
on
accurate and
The
court
reliable information"
remanded
resentencing
if
__
contained in the
the
the
case to
court
may have
the
relied
been violated.
district
upon
court
statistical
PSI setting forth sentences
for
data
given to other
fraud defendants, and if it misinterpreted the meaning of the

___
data.
There is no indication
in this case that the district
-77
court
misinterpreted
appellant's
PSI
Therefore, there is
or
the
that
statistical
it
relied
data
upon
no showing that appellant's
appended
that
to
data.2
right to be
sentenced on accurate and reliable information was violated.

Affirmed.
_________
____________________
2.
The transcript of the sentencing hearing, if one exists,
was not filed with the district court. Therefore, it was not
available for our review. It is, of course, settled that the
appellant must bear the onus of any uncertainty arising out
of an incomplete record on appeal. See Real v. Hogan, 828
___ ____
_____
F.2d 58, 60 (1st Cir. 1987).
-88

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USCA1 Opinion

March 31, 1993

On page 5, line 16, delete the word "other."

March 25, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF RHODE ISLAND

Nestor Uribe on brief pro se.

district court's denial of his motion for modification of his

possession with intent to distribute cocaine,

offenses for which he

motion for a new trial. See

This court affirmed the

was convicted occurred

denied by the district

denial of appellant's second

United States v. Uribe, 890 F.2d

to eleven years in prison and a ten-year period of

a Motion for Judicial

court denied the motion

his motion was pursuant to

that the "sentence

on the grounds that it

reconsideration on the basis that

court denied both motions.

June 15, 1992, appellant filed

range of possible sentences provided by

from the denial of the last two motions.

was untimely filed.

committed prior to November 1,

imposes no time limits on filing, it only provides for

Although former Fed. R. Crim. P.

35(a), applicable to offenses

narrow meaning we have given

to that term in the context

e.g., United States v. Ames,

743 F.2d 46,

47 (1st Cir. 1984), cert. denied, 469 U.S. 1165 (1985).

are without merit.

appellant's motion as made pursuant

well within the statutory

concedes that he was sentenced

limits for the crimes of

The general rule

by a statute." United States v. Ruiz-Garcia,

F.2d 474, 476 (1st Cir. 1989) (citation omitted).

a "narrow band of exceptions" to this rule. United States

Ponce Federal Bank, 883

Appellant has failed

to show that his sentence

that band of exceptions. We address his arguments below.

even though his offense was

v. Uribe, 890 F.2d

The Guidelines apply

"In this pre-Guidelines

case, the district court was free to disregard the Guidelines

sentence within the statutory limits." Id.

concurrent nine-year terms of

on cruel and unusual