
USCA1 Opinion

	




                         [NOT FOR PUBLICATION]                         ____________________No. 91-1612                            UNITED STATES,                               Appellee,                                  v.                            JOHN E. HOSMER,                         Defendant, Appellant.                         ____________________             APPEAL FROM THE UNITED STATES DISTRICT COURT                   FOR THE DISTRICT OF MASSACHUSETTS             [Hon. William G. Young, U.S. District Judge]                         ____________________                                Before                         Selya, Circuit Judge,                     Bownes, Senior Circuit Judge,                        and Cyr, Circuit Judge.                         ____________________     Richard J. Vita with whom Elizabeth H. Cerrato was on brief forappellant.     Brien T. O'Connor, Assistant United States Attorney, with whom WayneA. Budd, United States Attorney, was on brief for appellee.                         ____________________                         ____________________     Per Curiam.  Defendant-appellant John Hosmer appeals hissentence on two grounds:  (1) that his sentence isdisproportionately high compared to sentences imposed upondefendants in a prior related case by a different districtcourt judge; (2) that the sentence violated the Ex Post FactoClause of the Constitution because the district courtconsidered the Sentencing Guidelines in determining itssentence, and the guidelines were not in effect at the time.1.  Disparate Sentencing     Two points are to be made.  One, our comparison of thesentences in this case and the prior one leads us to concludethat defendant's sentence here was not disproportionate to thesentences handed down for defendants in the other caseperforming similar activities; i.e., off-loading marijuana fromthe mother ship.  Two, even if defendant's sentence wasdisproportionate to the sentences in the other related case, itdoes not make any difference.  The district court judge herehad no duty to reconcile the sentence of defendant with thesentences of other defendants in the related prior case.  Sincethis was a pre-guideline case, the only check on the sentencingdiscretion of the judge was that the sentence not exceed thestatutory limits.2.  Consideration of the Sentencing Guidelines     In United States v. Twomey, 845 F.2d 1132, 1135 (1st Cir.1988), we held that in pre-guideline cases "the judge in hisdiscretion, [is] entitled to look at the guidelines and givethem some weight if he [chooses] to do so."  Id. at 1135.  Thesentencing judge made it explicit here that, in considering theguidelines, he knew he was not bound by them.     The judgment of the district court is AFFIRMED. 
