
USCA1 Opinion

	




                                      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No.  93-2042                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               JORGE GONZALEZ-VAZQUEZ,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                              _________________________                                        Before                       Selya, Boudin and Stahl, Circuit Judges.                                                ______________                              _________________________               Jose A. Fuentes Agostini, with whom Dominguez & Totti was on               ________________________            _________________          brief, for appellant.               Jose A.  Quiles-Espinosa,  Senior Litigation  Counsel,  with               ________________________          whom  Guillermo Gil,  United States  Attorney, Edwin  O. Vazquez,                _____________                            _________________          Assistant  United States  Attorney,  and Rosa  Emilia  Rodriguez-                                                   ________________________          Velez,  Assistant  United States  Attorney,  were  on brief,  for          _____          appellee.                              _________________________                                  September 8, 1994                              _________________________                    SELYA, Circuit  Judge.   This criminal  appeal requires                    SELYA, Circuit  Judge.                           ______________          that  we ascertain  whether the  district court  erred either  in          denying  appellant's motion  to  retract his  guilty  plea or  in          adding  a  two-level  weapons  enhancement  when calculating  the          guideline sentencing range (GSR).  Detecting no error, we affirm.                                          I.                                          I.                                          __                                    The Background                                    The Background                                    ______________                    On March 26, 1993, defendant-appellant  Jorge Gonzalez-          Vazquez (Gonzalez) pleaded guilty to conspiracy to import heroin,          and conspiracy to  possess heroin with  the intent to  distribute          it.   See  21 U.S.C.     963,  846, 952(a),  and 841(a)(1).   The                ___          charges  grew out of a sophisticated scheme or series of schemes,          lasting   more  than  15  months,   in  which  appellant  and  23          codefendants imported  large quantities of heroin  from Hong Kong          into  the United  States,  and then  distributed  it.   Appellant          played numerous  roles in  this elaborate plot,  sometimes buying          heroin   overseas,   sometimes   purveying  drugs   domestically,          sometimes  acting  as  a  courier, and  sometimes  serving  as  a          bodyguard.                    In return for  appellant's guilty plea,  the government          agreed to recommend a sentence  at the low end  of the GSR    but          the agreement contained  no stipulation as  to the parameters  of          the  GSR.   The  government also  agreed  to drop  several  other          charges  levelled  against   appellant.    One  charge   remained          unresolved:   a count accusing appellant of using or possessing a          firearm  during and in relation to a drug-trafficking offense, in                                          2          violation of 18 U.S.C.   924(c)(1).1  As to that  count, the plea          agreement preserved appellant's right to trial.                    Approximately  four months  after tendering  his guilty          plea,  appellant moved to withdraw it.  The district court denied          his  motion.    At  the disposition  hearing,  the  court invoked          U.S.S.G.  2D1.1(b)(1)  and boosted  the base offense  level (BOL)          for appellant's possession of  a dangerous weapon.2   After other          adjustments had been made  and appellant's criminal history score          had  been computed,  a  GSR  of  262-327  months  emerged.    The          prosecution recommended an incarcerative sentence at the nadir of          the range,  and the district  court obliged.   Apparently content          not to exact a last pound  of flesh, the government then moved to          dismiss the  unresolved firearms  count.   The court granted  the          government's motion.  This appeal followed.                                        ____________________               1The statute provides in pertinent part:                    Whoever,  during  and  in  relation  to  any  crime  of                    violence or  drug trafficking crime  (including a crime                    of violence  or drug  trafficking crime  which provides                    for an enhanced punishment if committed by the use of a                    deadly or dangerous weapon or device)  for which he may                    be  prosecuted in a court of the United States, uses or                    carries a firearm, shall, in addition to the punishment                    provided   for  such   crime  of   violence,  or   drug                    trafficking  crime, be  sentenced  to imprisonment  for                    five years. . . .           18 U.S.C.   924(c)(1)(1988).                2The applicable guideline, U.S.S.G.  2D1.1(b)(1)(Nov. 1992),          directs  the sentencing court, if it finds that during the course          of the  crime  the  defendant  possessed    "a  dangerous  weapon          (including a firearm)," to add two levels.                                          3                                         II.                                         II.                                         ___                                The Motion to Withdraw                                The Motion to Withdraw                                ______________________                    Appellant challenges the district court's denial of his          plea-withdrawal motion,  asserting that  he advanced a  "fair and          just  reason"  for  retracting  his  guilty  plea, and  that  the          district  court should have given him safe passage.  His asserted          reason masquerades as a claim that, when he tendered his plea, he          did  not   fully  understand  its  consequences.     Stripped  of          rhetorical  flourishes,  however,   appellant's  core   complaint          appears to be  that he did not  realize that his GSR would  be so          formidable.                    Even prior  to the imposition of  sentence, a defendant          does not have  an unqualified  right to withdraw  a guilty  plea.          See  United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.          ___  _____________    _______________          1994);  United States  v. Buckley,  847 F.2d  991, 998  (1st Cir.                  _____________     _______          1988), cert. denied, 488 U.S. 1015 (1989).  Rather, a presentence                 _____ ______          motion to retract a plea can be granted "only upon an affirmative          showing of a 'fair  and just reason.'"  Parrilla-Tirado,  22 F.3d                                                  _______________          at  371  (quoting Fed.R.Crim.P.  32(d)).3   The  burden  of proof          rests with the  defendant.  See  United States v. De  Alba Pagan,                                      ___  _____________    ______________          ___ F.3d ___, ___ (1st Cir. 1994) [No. 93-2018, slip op. at 2-3];          Parrilla-Tirado,  22 F.3d at 371.   In deference  to the intimate          _______________          tri-cornered  relationship  among  trial  judge,  prosecutor, and                                        ____________________               3Fed.R.Crim.P. 32(d) states in pertinent part:  "If a motion          for withdrawal  of a plea of guilty . . . is made before sentence          is  imposed, the court may  permit withdrawal of  the plea upon a          showing by the defendant of any fair and just reason."                                          4          criminal defendant,  we review  a  district court's  denial of  a          request to withdraw a guilty plea solely for abuse of discretion.          See  United States v.  Doyle, 981 F.2d 591,  594 (1st Cir. 1992);          ___  _____________     _____          United States v. Pellerito, 878 F.2d 1535, 1538 (1st Cir. 1989).           _____________    _________                    Federal  courts use a  multi-factor test  as an  aid in          ascertaining whether a proffered  reason for withdrawal meets the          criteria  of Rule  32(d).  This  test is familiar,  see, e.g., De                                                              ___  ____  __          Alba Pagan, ___ F.3d  at ___ [slip op. at  2-3]; Parrilla-Tirado,          __________                                       _______________          22 F.3d  at 371; Doyle, 981  F.2d at 594; Pellerito,  878 F.2d at                           _____                    _________          1537,  and  does  not  bear  reiteration.    Instead,  we proceed          directly to a factor-by-factor examination of appellant's plaint.                    1.   Plausibility.  Appellant claims  that his decision                    1.   Plausibility.                         ____________          to  plead guilty  was based  upon the  government's  agreement to          recommend a sentence at the low end of the GSR   a recommendation          that, to appellant's way of thinking, meant 210 months.  But that          assumption stemmed from a miscalculation on  appellant's part   a          miscalculation  fueled by his hope that there would be no weapons          enhancement.  It is a  fact of law and life, too basic to warrant          citation of authority, that  a criminal defendant cannot jettison          a  guilty  plea knowingly,  intelligently,  and voluntarily  made          merely because the sentencing judge calls  a tune that is not  to          the defendant's taste.  It is a corollary of this principle that,          as we recently stated in a case comparable to this one, "the fact          that a defendant  misapprehends the  likely guideline  sentencing          range  does not constitute a fair and just reason for withdrawing          a guilty plea."  De Alba Pagan, ___  F.3d at ___ [slip  op at 4];                           _____________                                          5          accord United States  v. Williams, 919  F.2d 1451, 1456-57  (10th          ______ _____________     ________          Cir. 1990), cert. denied,  499 U.S. 968 (1991); United  States v.                      _____ ______                        ______________          Garcia, 909 F.2d  1346, 1348  (9th Cir. 1990);  United States  v.          ______                                          _____________          Bradley, 905 F.2d  359, 360  (11th Cir. 1990);  United States  v.          _______                                         _____________          Stephens, 906 F.2d  251, 253  (6th Cir. 1990);  United States  v.          ________                                        _____________          Jones, 905 F.2d  867, 868-69  (5th Cir. 1990);  United States  v.          _____                                           _____________          Sweeney, 878 F.2d 68, 69-71 (2d Cir. 1989).          _______                    This is  a particularly  weak case for  a defendant  to          suggest  that we  should bend the  rule.   The transcript  of the          change-of-plea hearing  makes it  pellucid that Gonzalez  knew at          the  time that, regardless of  the eventual outcome  of the then-          unresolved  weapons charge,  he  still faced  the prospect  of an          enhanced  BOL at  sentencing.   During the  hearing,  his counsel          stated in open court and in appellant's presence:                    I have also informed  Mr. Gonzalez that it is                    the position  of the U.S.  attorney that,  in                    the event  that he would be  acquitted of the                    gun charge, that is count 23, that they could                    ask  or it could be possible that he would be                    found  with a  two point  enhancement  at the                    moment of the sentencing hearing.          Counsel added  that he  explained  to Gonzalez  that this  tactic          "could possibly increase  his offense level.  . . ."   Hence, the          ambush of which  appellant now  complains was no  ambush at  all,          but,  rather, a  frontal  assault, with  the government's  troops          marshalled in  plain  view from  the very  onset of  hostilities.          Appellant's articulated reason for  seeking to scuttle his guilty          plea is, therefore, not plausible.                    2.   Timing.   The timing  of  a motion  to withdraw  a                    2.   Timing.                         ______                                          6          guilty  plea often serves as a gauge for measuring the legitimacy          of a proffered  reason.   Belated requests, even  if made  before          sentencing,    are    generally   regarded    as   afterthoughts.          Consequently,  the "longer  a  defendant waits  before moving  to          withdraw his plea, the more potency his motion must have in order          to gain  favorable consideration."   Parrilla-Tirado, 22  F.3d at                                               _______________          373; accord Doyle, 981 F.2d at 595; Pellerito, 878 F.2d at 1541.               ______ _____                   _________                    Here, appellant waited approximately four  months after          pleading  guilty  and  two  months   after  the  release  of  his          presentence investigation report  (PSI Report)  before moving  to          retract  his plea.4  Given the totality of the circumstances that          pertain here,  appellant's lassitude serves  to cast considerable          doubt  upon the legitimacy of his professed reason for seeking to          change course.                    3.   Assertion of Innocence.  "In determining whether a                    3.   Assertion of Innocence.                         ______________________          proposed  plea  withdrawal  is   fair  and  just,  a  defendant's          assertion  of  innocence  may  weight  the  scales  in  favor  of          withdrawal, and conversely,  the absence of a  claim of innocence          weights the opposite pan of the scale."  Parrilla-Tirado, 22 F.3d                                                   ________________________          at 373; accord United States v. Kobrosky, 711 F.2d 449,  455 (1st          ______  ______ _____________    ________          Cir.  1983).   Appellant did  not proclaim  his innocence  in his          plea-withdrawal  motion.   To  the contrary,  at the  disposition                                        ____________________               4The  chronology is  as follows.   Appellant pled  guilty on          March   26,  1993.    New  counsel  entered  the  case  ten  days          thereafter.  The  probation department issued  the PSI Report  on          June 1, 1993.   On August 9, 1993, appellant  filed his motion to          withdraw his guilty plea.  The district court sentenced appellant          on August 19, 1993.                                          7          hearing he stated;  "I know I committed a crime and I have to pay          for it."   Appellant's explicit admission of  his guilt militates          strongly against disturbing the ruling below.                    4.   Voluntariness.  In reviewing the merits of a plea-                    4.   Voluntariness.                         _____________          withdrawal motion, an inquiring  court must determine whether, in          light  of the  defendant's proffered  reason and any  other newly          disclosed facts, the  guilty plea can  still be deemed  voluntary          and intelligent.  See United States v. Austin, 948 F.2d 783, 786-                            ___ _____________    ______          87  (1st Cir.  1991).    Appellant  makes  no  challenge  to  the          sufficiency  of the Rule 11 proceeding in this case, and, indeed,          the colloquy is a model of thoroughness.                    We need go no further.   It is apparent that no hint of          error tainted the  district court's refusal to allow appellant to          retract  his guilty  plea.   Consequently,  Gonzalez's conviction          must stand.                                         III.                                         III.                                         ____                                     The Sentence                                     The Sentence                                     ____________                    Appellant also challenges the district court's reliance          on  U.S.S.G.   2D1.1(b)(1)  in  the  course  of  formulating  his          sentence.    He maintains  that  his  alleged possession  of  the          firearm, and, hence, the applicability of the guideline,  was not          proven by a fair preponderance of the  evidence; and that, in any          event,  the  guideline's  applicability had  to  be  demonstrated          beyond a  reasonable doubt inasmuch as the increase imposed under          the  guideline  is  in  reality  an additional  sentence,  not  a          sentencing enhancement.  We do not accept either contention.                                          8                    1.   Sufficiency  of  the Proof.   Appellant's  initial                    1.   Sufficiency  of  the Proof.                         __________________________          sentencing  sortie  is effortlessly  repulsed.    In gauging  the          sufficiency of the factual foundation on which a  sentence rests,          we must "accept the findings of fact of the district court unless          they are clearly erroneous," while at the same time "giv[ing] due          deference to  the district court's application  of the guidelines          to  the facts."  18 U.S.C.    3742(e); see United States v. Ruiz,                                                 ___ _____________    ____          905 F.2d 499, 507 (1st Cir. 1990); United States v. Mocciola, 891                                             _____________    ________          F.2d 13, 16 (1st Cir. 1989).                    In the  case at hand, the  district court's factfinding          survives  clear-error review.   This  conclusion is  reached more          easily   because   of   the  Sentencing   Commission's   specific          instruction that  section 2D1.1(b)(1)  "should be applied  if the          weapon was  present,  unless it  is clearly  improbable that  the          weapon was  connected with the offense."   U.S.S.G.  2D1.1(b)(1),          comment.  A sentencing court must,  of course, honor this type of          instruction.   See, e.g., United  States v. Fiore, 983  F.2d 1, 2                         ___  ____  ______________    _____          (1st Cir.  1992)  (explaining that  the  Sentencing  Commission's          interpretation  of a  guideline should be  followed unless  it is          "arbitrary, unreasonable, inconsistent with the guideline's text,          or contrary to law"), cert. denied, 113 S. Ct. 1830 (1993).                                _____ ______                    Here,  the record  supports  a  finding that  appellant          served as a bodyguard while one of  his coconspirators negotiated          the terms of a proposed narcotics transaction with a confidential          informant.  It likewise supports a finding that appellant carried                                          9          a pistol during  the encounter.5   Under these circumstances,  we          must  uphold the district court's conclusion that, on the date of          appellant's  arrest, he possessed a  firearm in the  course of an          aborted drug transaction.                      Appellant  tries  to  stave  off  the near-irresistible          force of these findings in two ways.  First, he suggests that, to          warrant an adjustment under  U.S.S.G.  2D1.1(b)(1), the  evidence          must  establish the same panoply  of elements that  are needed to          prove the statutory "carrying and use" of a weapon in furtherance          of  a drug crime, see 18 U.S.C.    924(c)(1).6  The suggestion is                            ___          fanciful, for  the guideline  can be triggered  with considerably          greater ease.                    The point is readily  susceptible to illustration.  For          one  thing, while  mere possession  of a  firearm during  a drug-          trafficking episode does not satisfy the elements of the statute,          see United States  v. Castro-Lara,  970 F.2d 976,  983 (1st  Cir.          ___ _____________     ___________          1992), cert. denied, 113 S. Ct. 2935 (1993), the reverse is often                 _____ ______          true under the guideline, see, e.g., Ruiz, 905 F.2d at 507 ("Mere                                    ___  ____  ____                                        ____________________               5The  government  suggests,  with  some  foundation  in  the          record,  that  when  the  drug  deal  began  to  sour,  appellant          attempted to use  the pistol against a federal agent.  Because we          do not  need to reach the  question of whether the  proof here is          sufficient  to support a conviction  under 18 U.S.C.   924(c)(1),          we abjure comment on the reliability of the evidence underpinning          this more menacing scenario.               6The  reader  will recall  that  the  grand jury  originally          charged appellant  under that  statute; that  the charge  was not          compromised  as  part of  the  plea agreement;  that  the parties          anticipated  that  the section  924(c)(1)  count  would be  tried          subsequently; and  that, eventually, the  government dropped  the          charge.                                           10          possession of a firearm can trigger the two level increase; there          is no requirement that  the gun actually be used  in perpetrating          the drug crime, or that such use be intended,"); United States v.                                                           _____________          Green, 889 F.2d 187, 189 (8th Cir. 1989) (similar); United States          _____                                               _____________          v. Paulino,  887 F.2d 358,  360 (1st  Cir. 1989) (similar).   For             _______          another thing,  the "clearly  improbable"  language quoted  above          makes a huge  difference.   Under the  statute, the  government's          burden of persuasion never varies.  Under the guideline, however,          once the underlying crime and the presence of a firearm have been          established,  the burden then shifts to the defendant to show, or          at  least produce  some evidence  of, "the  existence of  special          circumstances that would render  it 'clearly improbable' that the          weapon's presence has a connection to the narcotics trafficking."          United States v. Corcimiglia,  967 F.2d 724, 728 (1st  Cir. 1992)          _____________    ___________          (quoting  Commentary).     This   distinction  is   of  paramount          importance here, as the record justifies a finding of possession,          and appellant has  neither produced nor pointed to  the existence          of any  evidence indicating  the improbability of  a facilitative          nexus between the gun and the crime.                    Appellant's  next effort at  annihilating the two-level          increase  amounts  to  an  attack  on  the  reliability   of  the          government's  proof.   The fusillade  misses the  target.   To be          sure, the court's findings are based primarily on the PSI Report,          which,  in   turn,  relies  heavily  on   grand  jury  testimony,          coconspirators'  statements, and other  hearsay.  But appellant's          castigation  of this  evidence  overlooks the  special nature  of                                          11          sentencing proceedings.  In  the sentencing phase of a  case, the          Federal  Rules  of  Evidence  do   not  apply.    Thus,  "[f]acts          contained  in  a  presentence  report ordinarily  are  considered          reliable  evidence for  sentencing purposes."   United  States v.                                                          ______________          Morillo, 8 F.3d 864, 872 (1st Cir. 1993) (citing cases).  By like          _______          token,  grand  jury testimony  may  be  consulted for  sentencing          purposes.  See United  States v. Zuleta-Alvarez, 922 F.2d  33, 36                     ___ ______________    ______________          (1st  Cir.  1990) ("The  sentencing court  is  free to  rely upon          outside evidence, including hearsay  evidence that has never been          subject  to  cross-examination."),  cert.  denied, 500  U.S.  927                                              _____  ______          (1991).   Particularly where, as here, the defense has adduced no          countervailing evidence,  the district court is  entitled to rely          upon the PSI  Report, grand  jury testimony, and  the like.   See                                                                        ___          Morillo, 8  F.3d at 872; United States v. Garcia, 954 F.2d 12, 19          _______                  _____________    ______          (1st  Cir. 1992); United States v. Iguaran-Palmar, 926 F.2d 7, 10                            _____________    ______________          (1st Cir. 1991); Ruiz, 905 F.2d at 508.                           ____                    2.   Use  of the  Preponderance Standard.   Appellant's                    2.   Use  of the  Preponderance Standard.                         ___________________________________          fallback  position is  that,  even if  the  proof suffices  on  a          preponderance standard, using that standard transgresses his  due          process  rights.   He hinges this  claim on  the thesis  that the          increase in his sentence  attributable to the section 2D1.1(b)(1)          adjustment  (agreed by  the parties  to have  been 52  months) is          roughly  equivalent  to  the  length  of  the  mandatory  minimum          sentence for  violating 18 U.S.C.    924(c)(1) (60  months), and,          therefore, demands proof  beyond a reasonable  doubt.  Though  we          give  appellant's counsel  high marks  for ingenuity,  his thesis                                          12          does not earn a passing grade.                    In  the first  place,  appellant failed  to unfurl  the          thesis  in the  lower  court.   Accordingly,  it is  procedurally          defaulted  and merits rejection on  that bias alone.   See United                                                                 ___ ______          States  v. Dietz,  950  F.2d 50,  55 (1st  Cir.  1991) ("We  have          ______     _____          repeatedly  ruled,  in connection  with  sentencing  as in  other          contexts, that  arguments not  seasonably addressed to  the trial          court  may not  be  raised for  the first  time  in an  appellate          venue.") (collecting cases).                    In the second place, the thesis lacks substance.  It is          well settled that  a sentencing proceeding differs  from a trial;          by  definition, the  defendant's guilt  has been  established the          presumption of innocence  has dissipated, and,  consequently, the          prosecution need not  prove the  facts upon which  it relies  for          sentencing purposes beyond a  reasonable doubt.  See McMillan  v.                                                           ___ ________          Pennsylvania, 477 U.S. 79,  91 (1986); United States  v. Tardiff,          ____________                           _____________     _______          969 F.2d 1283, 1289 (1st Cir. 1992); United States v. Wright, 873                                               _____________    ______          F.2d 437,  441 (1st Cir.  1989).  This  rule does not  offend due          process.  See McMillan, 477 U.S. at 91; see also United States v.                    ___ ________                  ___ ____ _____________          Vinson,  886 F.2d  740,  742 (4th  Cir.  1989) (holding  that  in          ______          sentencing proceedings  due process does not  necessitate a level          of proof  greater than  a preponderance  of the evidence),  cert.                                                                      _____          denied,  493  U.S.  1062  (1990).    Inspected   in  this  light,          ______          appellant's constitutional challenge fails.                    Nor  does it  make  a significant  difference that  the          government  originally   pressed  charges  under   18  U.S.C.                                              13          924(c)(1),  quoted supra  note 1.    After all,  the fact  that a                             _____          defendant  is  not charged,  or  could  not be  convicted,  under          section  924(c)  is  not   determinative  of  whether  a  weapons          enhancement  may be appropriate  under the sentencing guidelines.          See  United States v.  Jackson, 3 F.3d 506, 509 (1st  Cir. 1993);          ___ ______________     _______          see also  Mocciola, 891 F.2d  at 17 (holding that  even the facts          ___ ____  ________          underlying  a  prior  acquittal  on  a   weapons  charge  may  be          considered by  the sentencing  court for  enhancement purposes).7          We see  no reason why  the same rule  should not apply  where, as          here, the prosecution simply dismisses the weapons count.  And we          think it  is immaterial  that, in  the plea  agreement, appellant          reserved the right to trial on the statutory weapons charge.                    Appellant makes a last-ditch  effort to salvage his due          process claim.  He revives the infamous  "Catch-22" argument that          this  court rejected in Mocciola, but with a twist.  In Mocciola,                                  ________                        ________          the defendant, who  was charged  with both  drug trafficking  and          violating  section  924(c), argued  that the  weapons enhancement          permitted  by the  guidelines  created a  "Catch-22" because,  in          respect  to the firearms charge, whether he pled guilty or earned          an  acquittal after trial did  not really matter.   See Mocciola,                                                              ___ ________                                        ____________________               7Mocciola  is  a  mainstream  holding,  not,   as  appellant                ________          portrays it, a waif  in the wilderness.  See, e.g.  United States                                                   ___  ____  _____________          v.  Juarez-Ortega, 866 F.2d 747, 749 (5th Cir. 1989) (per curiam)              _____________          ("Although the jury may have  determined that the government  had          not proved  all of the elements  of the weapons  offense beyond a          reasonable  doubt,  such  a  determination does  not  necessarily          preclude  consideration of  underlying  facts of  the offense  at          sentencing  so   long  as   those  facts  meet   the  reliability          standard.");  United States v. Romano, 825 F.2d 725, 729 (2d Cir.                        _____________    ______          1987)  (similar); United States  v. Bernard, 757  F.2d 1439, 1444                            _____________     _______          (4th Cir. 1985) (similar).                                          14          891, F.2d at  17.  We dismissed this  argument, reasoning that it          "misperceives the  distinction between a sentence  and a sentence          enhancement."  Id.  at 17.  In so holding,  we commented that the                         ___          guideline adjustment added only  15 months to Mocciola's sentence          while  a  conviction  under  the  statute  would have  yielded  a          mandatory 60-month consecutive sentence.                    Appellant  pounces on  this comment.   He  contrasts it          with  his situation,  observing that  the additional  time tacked          onto  his sentence as a  result of the  guideline enhancement (52          months) is  nearly equal  to the prescribed  statutory punishment          (60 months).   We do not believe  that this circumstance makes  a          legally relevant difference.                    A sentence  is a sentence.   Conversely, an enhancement          is an enhancement   here, two levels, regardless of the BOL   and          the  incremental  effect of  the  enhancement  on any  particular          sentence  is  the  product of  the  interaction  of  a myriad  of          factors.   The  increase in  the  ensuing sentence,  whatever the          duration, neither alters the enhancement's  fundamental character          nor  bears on whether the facts underlying it must be established          by a different quantum of proof.  Cf. United States v. Rehal, 940                                            ___ _____________    _____          F.2d  1, 6  (1st Cir.  1991) (holding  that enhancing  a sentence          because of  a defendant's  perjurious testimony does  not require          proof by  the same standard as a perjury charge, but need only be          proved  by  a  preponderance   of  the  evidence).    In   short,          appellant's complaint about  the length of  the increment in  his          case  might  appropriately  be   addressed  to  Congress  or  the                                          15          Sentencing Commission; it cannot  rewardingly be addressed to the          courts.                    Affirmed.                    Affirmed.                    ________                                          16
