
USCA1 Opinion

	




          February 7, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                         ____________________        No. 95-1659                                     UNITED STATES,                                      Appellee,                                          v.                                   DOMINGO PEGUERO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Kara M. Fay on brief for appellant.            ___________            Sheldon Whitehouse, United States Attorney, and Zechariah  Chafee,            __________________                              _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   Defendant-Appellant  Domingo Peguero                      ___________            pleaded  guilty to  three counts  of distribution  of cocaine            base.   He was sentenced to  a prison term of  108 months, at            the low end of the applicable guideline sentencing range.  He            appeals from that sentence.  We affirm.                            I. Unconstitutional Vagueness                               __________________________                 Peguero's first  argument is that the  relevant statutes            and sections  of the United States  Sentencing Guidelines are            unconstitutionally   vague  because   of  their   failure  to            adequately define  "cocaine base."   As Peguero  concedes, we            rejected  this argument in United States v. Barnes, 8909 F.2d                                       _____________    ______            545, 552 (1st Cir. 1989), cert. denied, 494 U.S. 1019 (1990).                                      ____________            The argument has  also been rejected  by every other  federal            circuit  court that  has considered  it.   See, e.g.,  United                                                       ___  ____   ______            States  v. Jones, 979 F.2d 317, 319-20 (3d Cir. 1992); United            ______     _____                                       ______            States  v.  Jackson, 968  F.2d  158, 161-64  (2d  Cir. 1992);            ______      _______            United  States  v.  Thomas,  932 F.2d  1085,  1090  (5th Cir.            ______________      ______            1991).1                  1                 Peguero   suggests   that  the   investigation   by  the            Sentencing   Guidelines   Commission   into  the   "disparate            treatment and arbitrary enforcement  the statute has fostered                                            ____________________               1  To the  extent  that  Peguero's  argument is  meant  to               1            challenge the distinction between cocaine  powder and cocaine            base   as   an   irrational   and   racially   discriminatory            classification (in violation of the equal protection clause),            those arguments  have also been  rejected by this  court. See                                                                      ___            United States v.  Singleterry, 29 F.3d 733, 740-41  (1st Cir.            _____________     ___________            1994).                                          -2-            . .  . warrants [this  court] to reconsider  the issue."   We            reviewed the recent legislative  developments in this area in            United States v.  Camilo, No.  95-1565, slip op.  at 14  (1st            _____________     ______            Cir.  Dec.  18, 1995)  (rejecting  appellant's argument  that            ambiguity  in  the  Guideline's  distinction  between cocaine            powder and cocaine base entitled him to a  downward departure            pursuant  to U.S.S.G.    5K2.0).  None of  these developments            persuade  us that  it is  necessary to  revisit the  issue of            unconstitutional vagueness.                                II. Failure to Depart                                    _________________                 Peguero's second  argument is  that  the district  court            erred  in failing  to  grant a  downward  departure from  the            relevant guideline  sentencing range pursuant to  18 U.S.C.              3553(b) and U.S.S.G.    5K2.0.  The sentencing court  did not            directly respond to Peguero's oblique  requests for departure            based  upon the  following factors:  his drug  addiction, the            disparity  between sentences  for  cocaine base  and  cocaine            powder, family  ties and employment record.  We are persuaded            that the district  court's failure to  depart did not  result            from an erroneous belief  that it lacked the authority  to do            so.                 The  first two  factors  are not  permissible bases  for            departure.   See United States  v. Rivera, 994  F.2d 942, 949                         ___ _____________     ______            (1st  Cir. 1993)("drug or alcohol dependence or abuse  is not            a  reason for imposing a  sentence below the guidelines") and                                         -3-            United  States  v. Haynes,  985 F.2d  65,  70 (2d  Cir. 1993)            ______________     ______            (holding  that "a downward departure may not be predicated on            the fact  that penalties  for cocaine  crack are  more severe            than those involving cocaine.")   The facts and circumstances            relating to Peguero's family  ties and employment record were            not  sufficiently unusual  to  take the  case outside  of the            heartland.  See Rivera, 994 F.2d at 953 (noting that even  if                        ___ ______            court  misapprehended its  authority to  depart, resentencing            should not be ordered if there is "no significant possibility            that the  facts and  circumstances would permit  the district            court lawfully to order a departure").                       III. Evidence from Co-Defendant's Trial                            __________________________________                 Peguero's  third   argument  on   appeal  is   that  the            sentencing  court  "impermissibly  referenced  and   in  fact            utilized evidence of  Appellant's alleged leadership role  in            the charged offenses which were brought out in the trial of a            co-defendant [Marcelino Enrique Adames-Santos] in an entirely            separate proceeding."  Peguero, relying upon United States v.                                                         _____________            Berzon, 941 F.2d  8, 17  (1st Cir. 1991),  requests that  the            ______            sentence be  vacated and  his case remanded  for resentencing            "without consideration  of evidence  obtained in  the Adames-            Santos trial."                 Peguero  made no  objection at  the time  of sentencing,            when the court referred to the conclusions it had drawn based            on  the evidence  at co-defendant's  trial.   If  Peguero was                                         -4-            concerned that the information would  influence his sentence,            he ought to have requested a copy of the trial transcript and            sought a  continuance of  his sentencing  hearing so  that he            could   prepare  a  rebuttal  to  the  information  contained            therein.   "Having failed  to raise these  contentions before            the sentencing court, they   may not be raised for  the first            time  on appeal." United States  v. Jackson, 3  F.3d 506, 511                              _____________     _______            (1st Cir.  1993).  In any event, it is clear that Peguero was            not  prejudiced.     The  court  did  not  impose  an  upward            adjustment for a leadership role (despite its conclusion that            Peguero was a  leader) and  it sentenced him  to the  minimum            guideline sentence.  As Peguero has identified no permissible            basis  for a downward departure, he was not prejudiced by the            sentencing judge's knowledge of  the evidence received at the            co-defendant's trial.                            IV. References to Deportation                                _________________________                 Peguero's   final  argument  that   the  district  court            "attempted  to  usurp  powers  held by  the  Immigration  and            Naturalization Service"  by including an order of deportation            in his sentence,  is belied  by the record.   The  sentencing            transcript reveals  that the district court  included a clear            statement  of  the relevant  deportation  procedures  as they            applied to Peguero.  Therefore, there was no error.                 Peguero's sentence is affirmed. See Loc. R. 27.1.                                       ________  ___                                         -5-
