
USCA1 Opinion

	




          August 24, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2394                                             MOISES DIEGO OSPINA,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ___________________               Moises Diego Ospina on brief pro se.               ___________________               A.  John Pappalardo,  United States  Attorney, and  Paula J.               ___________________                                 ________          DeGiacomo,   Assistant  United  States  Attorney,  on  brief  for          _________          appellee.                                  __________________                                  __________________                      Per Curiam.   Appellant, Moises Diego Ospina,  pled                      __________            guilty  to  four  counts  of  conspiring  to  distribute  and            distributing  cocaine.    He  was  sentenced  to  63  months'            imprisonment on December 18, 1990.  Appellant did not  appeal            the sentence, but  in May, 1992 filed a motion pursuant to 28            U.S.C.   2255 to vacate, set aside  or correct sentence.  The            district court dismissed the petition.  We affirm.                      Appellant raised three issues in his   2255 motion.            First, he argued that  the sentence was imposed in  violation            of Fed. R.  Crim. P. 32(a)(1)(A)  because the district  court            failed  to determine that appellant had had an opportunity to            read  his  Pre-Sentence  Report ("PSR").    Second, appellant            contended  the  district  court  violated Fed.  R.  Crim.  P.            32(c)(3)(D) by failing to give  him an opportunity to contest            factual inaccuracies  in his PSR.   Finally, appellant argued            that his sentence violated the Eighth Amendment's prohibition            against  cruel   and  unusual  punishment   because  it   was            disproportionate   to  the  sentence  imposed  upon  his  co-            defendant.   We  address each  of appellant's  contentions in            turn.                      Fed. R. Crim. P. 32(a)(1)(A)                      ____________________________                      Rule  32(a)(1)(A) provides  that at  the sentencing            hearing, and  before  imposing sentence,  the district  court            shall "determine  that the defendant  and defendant's counsel            have had the opportunity to read  and discuss the [PSR]."  At                                         -2-            appellant's  sentencing  hearing,   the  following   exchange            occurred between appellant's attorney, William A.  Brown, and            the sentencing judge regarding the PSR:                      THE COURT: Mr. Brown, have you and your client                 had  an  opportunity  to  review   the  presentence                 report?                      MR. BROWN:  Yes, Your Honor.   for the record,                 it  was sent to  him several weeks  ago in Danbury.                 He advised me this morning that he had not received                 it.  I don't  know why the mail hadn't  got through                 to him in prison, but apparently it hadn't.                      THE  COURT:  Well,  has  he  had  an  adequate                 opportunity now to review the presentence report?                      MR. BROWN: He has had an opportunity to review                 the report.  And it is my understanding  that there                 are no  additions or corrections thereto  as to any                 factual matters set forth therein.                      THE COURT: All right. . . .            The  court,  after  hearing from  appellant's  counsel, asked            appellant  directly  if  he  had  anything  further  to  say.            Appellant spoke, through an interpreter, about the influences            on the street that had led  him into criminal conduct and his            regrets over that conduct.  He did not object that he had not            seen the PSR.                                         -3-                      Appellant  contends on  appeal, as  he did  for the            first time in his   2255 motion,  that he did not see the PSR            prior to  or at his sentencing  hearing.  He argues  that the            district court  erred by failing to ask  appellant himself if                                                     _________            he had reviewed  the PSR  and whether he  had any  objections            thereto.   "However,  binding precedent  in this  circuit has            directed  that if it is  abundantly clear from the sentencing            hearing that both defendant and his counsel are familiar with            the report,  a new sentencing  hearing will not  be mandated,            even  if  the court  failed to  directly inquire  whether the            _____________________________________________________________            defendant had an  opportunity to review the report."   United            __________________________________________________     ______            States  v. Manrique,  959  F.2d 1155,  1157  (1st Cir.  1992)            ______     ________            (emphasis added). See United States v. Cortez, 841 F.2d  456,                              ___ _____________    ______            460 (2d  Cir.), cert. denied,  486 U.S. 1058  (1988) (holding                            ____________            that it is not necessary for the district court to personally            question the defendant as to whether he has read the PSR).                      In  this  case,  appellant's attorney  specifically            stated  that  he and  his client  had  had an  opportunity to            review the PSR.  "All that is required by Rule 32(a)(1)(A) is            that the court  determine that the defendant and  his counsel            have had  the opportunity  to read  and discuss  the report."            United States v. Serino,  835 F.2d 924, 931 (1st  Cir. 1987).            _____________    ______            The  record indicates  that the  district court  made such  a            determination.   Therefore,  there was  no violation  of Rule            32(a)(1)(A).                                         -4-                      Fed. R. Crim. P. 32(c)(3)(D)                      ____________________________                 Appellant argues that the sentencing court violated Rule            32(c)(3)(D) by failing to give  him an opportunity to contest            factual inaccuracies in his  PSR.  Rule 32(c)(3)(D), however,            merely  requires   that  if  defendant  alleges  any  factual                                     __            inaccuracies  in the PSR, "the court shall, as to each matter            controverted, make  (i) a  finding as  to the allegation,  or            (ii)  a  determination  that  no such  finding  is  necessary            because  the  matter  controverted  will not  be  taken  into            account in sentencing."  Fed. R.  Crim. P.  32(c)(3)(D).   In            this case, defendant did  not allege any factual inaccuracies            in the PSR.   At the sentencing  hearing, appellant's counsel            specifically stated  with respect to the PSR  that "there are            no additions or corrections thereto as to any factual matters            set forth therein."  When the sentencing judge gave appellant            an opportunity  to  speak,  he did  not  allege  any  factual            inaccuracies or other objections to the PSR.1                      Appellant argues that  because he was  not provided            with a copy of  the PSR until after sentencing, he was denied            an  opportunity  to  contest  factual  inaccuracies contained                                            ____________________            1.    Appellant to date has failed to identify any factual or            other errors in his PSR.   In his   2255  petition, appellant            merely made the following general statement:                 Now, that the defendant  has a copy of  the report,                 he  has discovered  many issues  to which  he would                 have challenged  at the  sentencing if he  had been                 given the opportunity.                                         -5-            therein.  Rule 32(c)(3)(A) requires that the court afford the            defendant and his  counsel "an opportunity to comment  on the            report  and, in  the discretion  of the  court, to  introduce            testimony  or  other  information  relating  to  any  alleged            factual inaccuracy contained in it."                        It  is   apparent  from   the  transcript   of  the            sentencing  hearing that  the  court gave  appellant and  his            counsel  the requisite  opportunity  to comment  on the  PSR.            Appellant's  counsel  specifically  informed  the  sentencing            judge  that  there  were  no additions  or  corrections  that            appellant wished to  make to the PSR.  In  addition, when the            court gave appellant  an opportunity to speak  on his behalf,            he did not claim either that he had not had an opportunity to            review  the  PSR or  that  he  had any  objections  thereto.2            Therefore, the sentencing  court did not violate  appellant's            rights under Rule 32(a)(3).                      Disproportionate Sentence                      _________________________                      Appellant  was  arrested and  indicted  with a  co-            defendant,  Matias  Contreras-Liriano.   While  appellant was                                            ____________________            2.    Appellant argues for the  first time on appeal that the            reason he did  not inform the  court that he  had not had  an            opportunity  to review  the PSR  was that  he does  not speak            English  and that he was instructed by his attorney to remain            silent except to  apologize for his  behavior when the  court            addressed  him personally.   The  record from  the sentencing            hearing, however,  indicates that appellant was provided with            an interpreter.   Indeed, he  made a statement  to the  court            through an  interpreter, during which he  could have informed            the court  that he had not  been provided with a  copy of the            PSR.                                         -6-            charged  with four  counts  of conspiring  to distribute  and            distributing cocaine,  Mr.  Contreras was  charged with  only            three of the  counts in  the indictment.   Appellant and  Mr.            Contreras   were  sentenced  together.    At  the  sentencing            hearing, the court  noted that based on  the defendants' PSRs            the  total offense  level  was 26  and  the criminal  history            category  was one for both  defendants.  Therefore, the court            calculated an imprisonment range of 63 to 78 months.  Neither            defendant objected  to that calculation.   The district court            sentenced  appellant at the low end of the guideline range to            63  months imprisonment.    In response  to the  government's            motion under   5K1.1 of  the Sentencing Guidelines, the court            departed downward from the  guidelines imprisonment range and            sentenced Mr.  Contreras to  42 months' imprisonment  to take            account of his cooperation.  The government did not make  a              5K1.1 motion  with respect  to appellant, nor  does appellant            contend that he provided the requisite cooperation.                      Instead, appellant  complains that his  sentence is            disproportionate to the sentence received by his co-defendant            and other similarly situated  defendants, in violation of the            Eighth Amendment.  He further contends, for the first time on            appeal, that his higher  sentence is the impermissible result            of his having  exercised his Fifth Amendment  right to refuse            to  cooperate with  the  government by  providing information            about his and others' involvement in the offense.                                         -7-                      It  is well  established that  "a defendant  is not            entitled  to  a  lighter  sentence  merely  because  his  co-            defendants  received  lighter  sentences." United  States  v.                                                       ______________            Gomez-Pabon, 911 F.2d 847, 862 (1st Cir. 1990), cert. denied,            ___________                                     ____________            498 U.S. 1074 (1991).   And, under the sentencing guidelines,            disparity in sentencing outcomes as among codefendants cannot            justify a departure  from the sentencing  range.  See  United                                                              ___  ______            States v.  Wogan,  938 F.2d  1446, 1448-49  (1st Cir.  1991).            ______     _____            Therefore, even  if appellant  and his co-defendant  had been            similarly   situated,  the   lighter  sentence   received  by            appellant's  co-defendant would not  establish that appellant            received  a  disproportionate  sentence.   Nor  has appellant            presented any other evidence that his sentence, which he does            not deny is within the statutory limits, is disproportionate.                      Appellant did not  raise his Fifth Amendment  claim            in his    2255  motion.  Therefore,  it is not  cognizable on            appeal. See Santiago v. United States, 889 F.2d 371, 377 (1st                    ___ ________    _____________            Cir.  1989)  (refusing  to   address  on  appeal  matter  not            presented in appellant's    2255 petition).  Even if  we were            to  consider it, appellant would  not prevail.   We have held            that to deny a defendant a reduction in his offense level for            acceptance of responsibility under    3E1.1 of the Sentencing            Guidelines because defendant does not admit  criminal conduct            beyond  the offense  charged  would violate  the  defendant's            Fifth  Amendment right  not to  incriminate himself.   United                                                                   ______                                         -8-            States v. Perez-Franco,  873 F.2d 455,  463 (1st Cir.  1989).            ______    ____________            Here,  however,  appellant  argues   that  the  denial  of  a            reduction in his sentence  under   5K1.1 where he  refused to            cooperate with the  government violates the  Fifth Amendment.            Unlike   3E1.1, which requires  admission by defendant of his            own  criminal  activities,      5K1.1  is  "directed  to  the            prosecution of criminal activities  by persons other than the                                                           ______________            defendant."   U.S.S.G.   5K1.1, application  note 2 (emphasis            _________            added).  Nor has appellant alleged that the government sought            his cooperation  regarding any  offenses other than  those to            which he pled  guilty.    Therefore, appellant  has failed to            demonstrate  that   the  government's  failure  to  move  for            departure  under      5K1.1  where  he refused  to  cooperate            constitutes an impermissible penalty  for his exercise of his            Fifth Amendment right not to incriminate himself.                      For  the  foregoing reasons,  the  district court's            denial of appellant's   2255 motion is affirmed.                                                   ________                                         -9-
