
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1562                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                FELIX A. MARTES-REYES,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                            and Lagueux*, District Judge.                                          ______________                              _________________________               Rafael Anglada-Lopez on brief for appellant.               ____________________               Guillermo  Gil ,  United  States Attorney,  Jos  A.  Quiles-               ______________                              ________________          Espinosa, Senior  Litigation Counsel, Sonia I.  Torres and Nelson          ________                              ________________     ______          P rez-Sosa, Assistant  United States Attorneys, on  brief for the          __________          United States.                              _________________________                                    June 10, 1997                              _________________________                     ____________________________          *Of the District of Rhode Island, sitting by designation.                    Per Curiam.  This  is a single-issue sentencing appeal.                    Per Curiam.                    __________          Affording de  novo review to the  district court's interpretation          of  the sentencing  guidelines and  its application  of governing          legal principles, see United States v. Lindia, 82 F.3d 1154, 1159                            ___ _____________    ______          (1st  Cir. 1996),  we  conclude that  the court  did  not err  in          sentencing  the  appellant to  18  months  of imprisonment  after          revoking his probation.                    We set the stage.  On October 14, 1992, a federal grand          jury sitting in  Puerto Rico returned an  indictment charging the          appellant  with  attempting  to  use  an  altered  United  States          passport  while applying for admission to the United States.  See                                                                        ___          18 U.S.C.     1543.    After some  preliminary  skirmishing,  not          relevant  here, the appellant pled guilty.  On December 18, 1992,          the  court sentenced the appellant  to 36 months  probation.  The          conditions  of  his  probation   included  the  following:    the          appellant, while on probation, would neither commit another crime          nor illegally possess a controlled substance, and, if deported or          granted voluntary  departure, he would remain  outside the United          States unless  he obtained  prior written authorization  from the          pertinent authorities and met other benchmarks.                    On August 24, 1995,  the appellant's probation  officer          notified the district court that the appellant had violated these          conditions.   The probation  officer reported that,  in 1994, the          appellant had been arrested and convicted in New York for selling          cocaine;  and that, on March 1, 1995, Customs agents had arrested          and charged him with unlawful entry, false use of a passport, and                                          2          misuse of a visa.                    On September 21, 1995, the  district court held a show-          cause hearing  at  which  the  court found  that  probable  cause          existed to believe that the appellant had violated the conditions          of his probation.  On  October 5, 1995, the court held  a further          hearing.   At the conclusion  of this hearing,  the court revoked          the  term of  probation  which  had  been  imposed  in  1992  and          sentenced the appellant  to 18 months imprisonment.   This appeal          followed.                    Revocation  of  probation is  governed generally  by 18          U.S.C.    3565(b)  and the  policy statements  contained in  USSG           7B1.3.  Policy statements are advisory in nature, see USSG Ch.7,                                                             ___          Pt.A,  intro. comment.; United States v. O'Neil, 11 F.3d 292, 301                                  _____________    ______          (1st Cir.  1993),  but when  correctly applied  they carry  great          weight.   See Stinson v.  United States, 508  U.S. 36, 42 (1993);                    ___ _______     _____________          United States v. Piper, 35 F.3d 611, 617 (1st Cir.  1994).  Under          _____________    _____          them,  revocation  of probation  is  mandatory  if the  defendant          commits a Grade  A violation,  see USSG  7B1.3(a)(1),  such as  a                                         ___          controlled substance offense.   See 18  U.S.C.   3565(b)(1);  see                                          ___                           ___          also 18 U.S.C.   3563(a)(3); USSG  7B1.1(a)(1)(ii).  Distributing          ____          a controlled substance constitutes a controlled substance offense          for this purpose.  See USSG  4B1.2(2).                             ___                    Viewed  against this  backdrop,  the  appeal is  easily          resolved.     The  New   York  conviction  for   selling  cocaine          constituted  all  that  was  needed  to  revoke  the  appellant's          probation.   See 18  U.S.C.   3565(b)(1);  USSG  7B1.3(a)(1); see                       ___                                              ___                                          3          also USSG  4B1.2(2).   The appellant's  glossover of the  cocaine          ____          sale and  his concomitant  attempt to  portray himself  as having          committed only a Grade B violation is disingenuous.  The short of          the  matter  is  that the  cocaine  sale  constituted  a Grade  A          violation, carrying with it a suggested  range of 12 to 18 months          of   imprisonment   in   the    ensuing   revocation-of-probation          proceeding.   See USSG  7B1.4(a).  The sentence that the district                        ___          court  meted out is within this range and is, therefore, entirely          appropriate.1                    We  need  go no  further.   For  the  reasons discussed          herein, the appellant's sentence is  summarily affirmed.  See 1st                                                         ________   ___          Cir. R.27.1.                                        ____________________               1In his  reply brief, the appellant takes  a different tack.          He contends that he should have been sentenced based on a Grade B          violation  because the drug offense that led to the revocation of          probation   occurred  before  the   district  court  imposed  the          probationary sentence.  This contention confuses the facts.   The          court sentenced the  appellant to  serve a term  of probation  in          1992.  The drug offense transpired almost two years later.                                          4
