
USCA1 Opinion

	




          November 9, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1358                                   MICHAEL A. LAU,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Michael A. Lau on brief pro se.            ______________            Guillermo  Gil,   United  States   Attorney,  Antonio   R.  Bazan,            ______________                                ___________________        Assistant United States Attorney, and Jose A. Quiles-Espinosa,  Senior                                              _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.   Michael  Lau  and  his codefendant  Bruce                 ___________            Taylor  were each convicted in December 1985 at a joint trial            on drug charges.  Lau was sentenced to 35 years and Taylor to            25  years  and their  convictions  were  affirmed on  appeal.            United States v.  Lau, 828  F.2d 871 (1st  Cir. 1987),  cert.            _____________     ___                                   _____            denied,  486   U.S.  1005   (1988).    Based   on  subsequent            ______            cooperation, the  sentences were  later reduced, Lau's  to 25            years  and Taylor's to 15 years.   Lau now appeals the denial            of his  recent  motion under  28 U.S.C.    2255  in which  he            challenged the 10 year disparity in  his sentence as compared            with that  of Taylor.  He claims that the two were similar in            culpability and history and that the only explanation for the            disparity   is  the   trial  judge's   remarks  at   Taylor's                                                                 ______            sentencing, that suggested that Taylor was led astray by Lau.            This, says Lau, is untrue.                   The Sentencing Guidelines did not apply to this case and            the sentencing judge therefore had extremely wide discretion,            largely beyond  appellate review.  See  Williams v. Illinois,                                               ___  ________    ________            399 U.S.  235, 243  (1970).   The Supreme  Court did say,  in            United  States v. Tucker, 404  U.S. 443, 447  (1972), that an            ______________    ______            appellate  remedy  may  be available  where  a  pre-guideline            sentence  is founded  upon "misinformation  of constitutional            magnitude"; but in that case  the sentencing judge had relied            on  two prior  convictions  that had  been unconstitutionally            obtained.   "Instead of confronting  a defendant who had been                                         -2-                                         -2-            legally convicted  of three previous felonies,  the judge [if            properly  informed] would then  have been dealing  with a man            who,  beginning  at  age  17,  had  been   unconstitutionally            imprisoned for more than ten years . . . ."  Id. at 448.                                                         ___                 Lau's   case  is   not   remotely   comparable.      The            responsibility  of one  person  for  another's misconduct  is            generally  a  matter of  degree  and  of  judgment.    Tucker                                                                   ______            involved  the  perpetuation of  prior  convictions  that were            later  found to  be unconstitutional.   Further,  the Supreme                                ________________            Court thought that the prejudice in Tucker was patent.  Here,                                                ______            the fact  that the  remark was made  at Taylor's  sentencing,            rather than  Lau's, suggests  that the court's  impression is            more likely to  have reduced Taylor's  sentence than to  have            enlarged Lau's.  Assuming that  there was any misappraisal at            all, we do not think that it is of constitutional magnitude.                 There  is some suggestion in  Lau's brief that he thinks            that  he was entitled to be present at Taylor's sentencing to            contest the judge's remarks  about Lau's influence on Taylor.            Fed. R. Crim. P.  43(a) entitles a defendant to be present at            his own sentencing and not that of another  defendant.  It is            in fact common  practice for codefendants to  be sentenced at            different times, depending  on when the respective  probation            reports are completed.                 Affirmed.                 ________                                         -3-                                         -3-
