
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1918                                    UNITED STATES,                                      Appellee,                                          v.                                  MANUEL DE-LA-ROSA,                                    A/K/A CAYAYO,                                A/K/A GREGORIO FABIAN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Boudin, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Joseph Frattallone-Marti on brief for appellant.            ________________________            Guillermo  Gil, United  States Attorney,  Jose  A. Quiles-Espinosa            ______________                            ________________________        and Desiree Laborde-Sanfiorenzo, Assistant United States Attorneys, on        brief for appellee.                                 ____________________                                   January 30, 1998                                 ____________________                 Per  Curiam.    Defendant-appellant Manuel  de  la  Rosa                 ___________            appeals from  his sentence entered  after his guilty  plea to            three   counts  charging  him   and  two  co-defendants  with            attempting to bring illegal aliens by boat from the Dominican            Republic  into the  United States,  at a  place other  than a            designated  port  of  entry,  in  violation  of  8  U.S.C.               1324(a)(1)(A)(i) and  18 U.S.C.    2.  Rosa appeals  only one            aspect  of his  sentence:   the district court's  decision to            make an upward departure from the imprisonment range dictated            by the  guidelines  because the  offense  involved  dangerous            treatment.                 We  have carefully reviewed  the record and  applied the            three-part  review process  established in  United  States v.                                                        ______________            Diaz-Villafane,  874 F.2d 43 (1st Cir.  1989).  The departure            ______________            in  this  case satisfies  each  step  in  the process.    The            relevant guideline provision  (application note 5 to    2L1.1            of the  1995 Guidelines  Manual) satisfies  step  one of  the            Diaz-Villafane analysis  by specifically  providing that  the            ______________            circumstances relied upon by the district court are of a kind            that may appropriately  be relied upon to  justify departure.            See United States  v. Reyes, 927 F.2d 48, 52 (1st Cir. 1991).            ___ _____________     _____            Step two is  satisfied by the undisputed facts  in the record            which  support the district  court's findings.   Finally, the            magnitude  of  the departure  is  not  beyond  the  realm  of                                         -2-            reasonableness.   See id.  at 53  (upholding departure  which                              ___ ___            tripled term provided by guideline range).                 Rosa's complaint about an  unwarranted disparity between            his  sentence and the sentences received by his co-defendants            is  unfounded.  "Absent misapplication of the Guidelines, the            mere fact  of the  disparity is of  no consequence."   United                                                                   ______            States v.  Rodriguez, 63 F.3d 1159, 1168 (1st Cir. 1995).  In            ______     _________            this case,  there was no misapplication of the guidelines and            the  record contains  a fully  adequate  explanation for  the            disparity.   See United  States v. Trinidad  de la  Rosa, 916                         ___ ______________    _____________________            F.2d 27, 30 (1st Cir. 1990) (holding that co-defendant should            not  receive  an upward  departure  for dangerous  conditions            where he neither owned the  boat nor determined the number of            passengers).      "The   Constitution   permits   qualitative            differences   in  meting  out  punishment  and  there  is  no            requirement  that two persons  convicted of the  same offense            receive identical sentences."  Williams v. Illinois, 399 U.S.                                           ________    ________            235, 243 (1970).                 Finally,   Rosa's   claim   that  the   district   court            impermissibly double counted  by using his status  as captain            of the vessel to increase his  sentence in two ways, is  also            without  merit.   "Several  factors may  draw  upon the  same            nucleus of operative  facts while  nonetheless responding  to            discrete  concerns.  Consequently,  a degree  of relatedness,            without more,  does not  comprise double  counting."   United                                                                   ______                                         -3-            States  v.  Lilly,  13 F.3d  15,  19 (1st  Cir.  1994).   The            ______      _____            leadership-role enhancement  and  the  upward  departure  for            dangerous treatment are  "neither conceptually nor  factually            equivalent."   Rodriguez,  63 F.2d  at  1169.   There was  no                           _________            double counting in this case.                 Rosa's sentence is affirmed.  See Loc. R. 27.1.                                    ________   ___                                         -4-
