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  Court issued  on  March 25,  1993, is
amended as follows:

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

March 25, 1993        [NOT FOR PUBLICATION]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.  We affirm.

     Appellant  was  convicted   on  January  21,   1988,  of

conspiracy and  possession with intent to distribute cocaine,

in  violation  of  21    U.S.C.      846  and  841(a)(1)  and

(b)(1)(B). The  offenses for which he  was convicted occurred

in  August and  September  of 1987.     Appellant  filed  two

motions  for a new  trial.  Both were  denied by the district

court.  This court affirmed the  denial of appellant's second

motion for a new trial. See  United States v. Uribe, 890 F.2d
                                                   

554  (1st  Cir.  1989).   On  July  14,  1988, appellant  was

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

supervised release.

     Appellant  filed  two separate  motions  pursuant  to 28

U.S.C.   2255.  The district  court denied both motions.   On

June 15, 1992, appellant filed  a Motion for Judicial  Notice

and Consideration of  Sentencing Modification.   The district

court denied the motion  on the grounds that it  was untimely

filed  under Fed.  R. Crim.  P. 35(b).   Appellant  moved for

reconsideration on the basis that  his motion was pursuant to

Fed.  R.  Crim. P.  35(a), which  imposes  no time  limits on

filing.   The  district court  denied appellant's  motion for

reconsideration, finding  that the "sentence  was within  the

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range of possible sentences provided by  law."  Uribe appeals

from the denial of the last two motions.

     Appellant's  motion, if  pursuant  to Fed.  R. Crim.  P.

35(b),  was untimely filed.  Although former Fed. R. Crim. P.

35(a), applicable to offenses  committed prior to November 1,

1987,  imposes no time limits on filing, it only provides for

the correction  of "illegal"  sentences.  Appellant  does not

argue  that his  sentence  is illegal  within the  relatively

narrow meaning we have given  to that term in the context  of

Rule 35(a).  See,  e.g., United States v. Ames,  743 F.2d 46,
                                              

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

     Even if we construe  appellant's motion as made pursuant

to 28  U.S.C.  2255,  we conclude that  appellant's arguments

are without merit.  Appellant  concedes that he was sentenced

well within the statutory  limits for the crimes of  which he

was convicted.1   The general rule  with respect to  offenses

committed  before November  1, 1987,  is that  "the appellate

court  has no  control over  a sentence  which is  within the

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

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

is  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.

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v.  Ponce  Federal  Bank, 883  F.2d  1,  5  (1st Cir.  1989).
                        

Appellant has failed  to show that his sentence  falls within

that band of exceptions. We address his arguments below.

     Appellant first argues that  even though his offense was

committed  prior to  November 1,  1987, 18  U.S.C.    3553(b)

required  the  district  court  to  consider  the  Sentencing

Guidelines  in sentencing  him and  to explain  any departure

therefrom.   We reject  this argument.   The Guidelines apply

only  to offenses  committed after  November 1,  1987. United
                                                             

States  v. Uribe, 890 F.2d  at 563.   "In this pre-Guidelines
                

case, the district court was free to disregard the Guidelines

and exercise  its sound  discretion in formulating  a condign

sentence within the statutory limits." Id.  
                                          

     Appellant's  second argument  is  that  his sentence  is

"disproportionate"  in violation  of  the Eighth  Amendment's

prohibition  on cruel and unusual  punishment.  In support of

this  claim, he refers  to the lighter  sentences received by

his  co-defendants.    One co-defendant  received  concurrent

seven-year  terms of  imprisonment  and a  four-year term  of

supervised   release.     The  other   co-defendant  received

concurrent nine-year terms of  imprisonment and an eight-year

term  of  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

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                              5

convicted  of  similar crimes  was 71  months and  the median

sentence was 60 months.

     The  Supreme Court  has held  that the  Eighth Amendment

requires a  prison sentence to be proportionate  to the crime

for which  the defendant has  been convicted. Solem  v. Helm,
                                                            

463 U.S.  277, 289-90 (1983).  As we  have previously  noted,

however,  the Court  also  advised reviewing  courts to  give

great  deference to  the broad  authority of  legislatures in

determining   sentencing  limits  and   of  trial  courts  in

sentencing defendants. See United  States v. Glantz, 884 F.2d
                                                   

1483, 1487  (1st  Cir. 1989),  cert.  denied, 493  U.S.  1086
                                            

(1990).  "In view of this deference, successful challenges to

the   proportionality   of  particular   sentences   will  be

'extremely rare.'" Id. (citation omitted).
                      

     "We  examine the sentence with  a view to  whether it is

grossly  disproportionate, considering the seriousness of the

offense in relation to the harshness of the punishment." Tart
                                                             

v.  Massachusetts,  949  F.2d   490,  503  (1st  Cir.  1991).
                 

Compared  with  the  facts  of  Solem,  where  the  defendant
                                     

received  a sentence of  life imprisonment for  passing a bad

check, the  sentence received  by appellant  is substantially

less  harsh and the offense is far  more serious.  As we said

in    Tart,   where   no    initial   inference    of   gross
          

disproportionality can reasonably be  drawn, there is no need

                             -6-
                              6

to compare  the challenged  sentence with other  sentences in

this or other jurisdictions.  Id. n. 16.
                                 

     Even if we were to engage in such a comparison, however,

appellant would  not prevail  on his Eighth  Amendment claim.

The statistics  attached to  his PSI  do not  demonstrate the

gross  disproportionality  of  his  sentence.   There  is  no

requirement that  defendants receive a sentence  equal to the

average or median sentence imposed on defendants convicted of

similar  offenses.     Moreover,  that  appellant's  sentence

exceeded the  average and median sentences  does not indicate

that it is outside of the  range of sentences imposed for the

offenses of which he  was convicted, or in any  other respect

grossly  disproportionate  to  those  offenses.  Nor  is  the

appellant entitled  to precisely the same  sentence as others

convicted with him.  

     United  States v.  Cannistraro, 871  F.2d 1210  (3d Cir.
                                   

1989), on which appellant relies, is distinguishable.  There,

the  court   held   that   appellant's   sentence   was   not

disproportionate  but  that his  "right  to  be sentenced  on

accurate and  reliable information"  may have  been violated.

The  court  remanded  the  case to  the  district  court  for

resentencing  if  the  court  relied  upon  statistical  data
                

contained in the  PSI setting forth sentences  given to other

fraud defendants, and if it misinterpreted the meaning of the
                     

data.  There is no indication  in this case that the district

                             -7-
                              7

court  misinterpreted  the   statistical  data  appended   to

appellant's  PSI   or  that   it  relied  upon   that  data.2

Therefore, there is  no showing that appellant's  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).

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