
USCA1 Opinion

	




          March 31, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No.  92-1981                                    UNITED STATES,                                      Appellee,                                          v.                                    NESTOR URIBE,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET               The  opinion  of this  Court issued  on  March 25,  1993, is          amended as follows:               On page 5, line 16, delete the word "other."                          March 25, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1981                                                UNITED STATES,                                      Appellee,                                          v.                                    NESTOR URIBE,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Nestor Uribe on brief pro se.               ____________               Lincoln C.  Almond,  United  States  Attorney,  Margaret  E.               __________________                              ____________          Curran and James H. Leavey, Assistant United States Attorneys, on          ______     _______________          brief for appellee.                                  __________________                                  __________________                 Per  Curiam.     Nestor Uribe  appeals  pro se  from the                 ___________                             ___ __            district court's denial of his motion for modification of his            sentence and motion for reconsideration.  We affirm.                 Appellant  was  convicted   on  January  21,   1988,  of            conspiracy and  possession with intent to distribute cocaine,            in  violation  of  21    U.S.C.      846  and  841(a)(1)  and            (b)(1)(B). The  offenses for which he  was convicted occurred            in  August and  September  of 1987.     Appellant  filed  two            motions  for a new  trial.  Both were  denied by the district            court.  This court affirmed the  denial of appellant's second            motion for a new trial. See  United States v. Uribe, 890 F.2d                                    ___  _____________    _____            554  (1st  Cir.  1989).   On  July  14,  1988, appellant  was            sentenced  to eleven years in prison and a ten-year period of            supervised release.                 Appellant  filed  two separate  motions  pursuant  to 28            U.S.C.   2255.  The district  court denied both motions.   On            June 15, 1992, appellant filed  a Motion for Judicial  Notice            and Consideration of  Sentencing Modification.   The district            court denied the motion  on the grounds that it  was untimely            filed  under Fed.  R. Crim.  P. 35(b).   Appellant  moved for            reconsideration on the basis that  his motion was pursuant to            Fed.  R.  Crim. P.  35(a), which  imposes  no time  limits on            filing.   The  district court  denied appellant's  motion for            reconsideration, finding  that the "sentence  was within  the                                         -3-            range of possible sentences provided by  law."  Uribe appeals            from the denial of the last two motions.                 Appellant's  motion, if  pursuant  to Fed.  R. Crim.  P.            35(b),  was untimely filed.  Although former Fed. R. Crim. P.            35(a), applicable to offenses  committed prior to November 1,            1987,  imposes no time limits on filing, it only provides for            the correction  of "illegal"  sentences.  Appellant  does not            argue  that his  sentence  is illegal  within the  relatively            narrow meaning we have given  to that term in the context  of            Rule 35(a).  See,  e.g., United States v. Ames,  743 F.2d 46,                         ___   ____  _____________    ____            47 (1st Cir. 1984), cert. denied, 469 U.S. 1165 (1985).                                _____ ______                 Even if we construe  appellant's motion as made pursuant            to 28  U.S.C.  2255,  we conclude that  appellant's arguments            are without merit.  Appellant  concedes that he was sentenced            well within the statutory  limits for the crimes of  which he            was convicted.1   The general rule  with respect to  offenses            committed  before November  1, 1987,  is that  "the appellate            court  has no  control over  a sentence  which is  within the            limits allowed  by a statute." United  States v. Ruiz-Garcia,                                           ______________    ___________            886  F.2d 474, 476 (1st Cir. 1989) (citation omitted).  There            is  a "narrow band of exceptions" to this rule. United States                                                            _____________                                            ____________________            1.    At the  time  of appellant's  offense, possession  with            intent  to distribute  in excess  of 500  grams of  a mixture            containing cocaine  carried a minimum sentence  of five years            and a maximum sentence of forty years. 21 U.S.C.   841 (a)(1)            and b(1)(B)(ii).   The maximum  term of imprisonment  for the            crime  of conspiracy to distribute and possess with intent to            distribute  was also forty years. 21 U.S.C.   846.                                         -4-            v.  Ponce  Federal  Bank, 883  F.2d  1,  5  (1st Cir.  1989).                ____________________            Appellant has failed  to show that his sentence  falls within            that band of exceptions. We address his arguments below.                 Appellant first argues that  even though his offense was            committed  prior to  November 1,  1987, 18  U.S.C.    3553(b)            required  the  district  court  to  consider  the  Sentencing            Guidelines  in sentencing  him and  to explain  any departure            therefrom.   We reject  this argument.   The Guidelines apply            only  to offenses  committed after  November 1,  1987. United                                                                   ______            States  v. Uribe, 890 F.2d  at 563.   "In this pre-Guidelines            ______     _____            case, the district court was free to disregard the Guidelines            and exercise  its sound  discretion in formulating  a condign            sentence within the statutory limits." Id.                                                     ___                 Appellant's  second argument  is  that  his sentence  is            "disproportionate"  in violation  of  the Eighth  Amendment's            prohibition  on cruel and unusual  punishment.  In support of            this  claim, he refers  to the lighter  sentences received by            his  co-defendants.    One co-defendant  received  concurrent            seven-year  terms of  imprisonment  and a  four-year term  of            supervised   release.     The  other   co-defendant  received            concurrent nine-year terms of  imprisonment and an eight-year            term  of  supervised release.    Appellant  also relies  upon            sentencing data appended to his presentence report indicating            that over a two-year period the average sentence  for persons                                         -5-                                          5            convicted  of  similar crimes  was 71  months and  the median            sentence was 60 months.                 The  Supreme Court  has held  that the  Eighth Amendment            requires a  prison sentence to be proportionate  to the crime            for which  the defendant has  been convicted. Solem  v. Helm,                                                          _____     ____            463 U.S.  277, 289-90 (1983).  As we  have previously  noted,            however,  the Court  also  advised reviewing  courts to  give            great  deference to  the broad  authority of  legislatures in            determining   sentencing  limits  and   of  trial  courts  in            sentencing defendants. See United  States v. Glantz, 884 F.2d                                   ___ ______________    ______            1483, 1487  (1st  Cir. 1989),  cert.  denied, 493  U.S.  1086                                           _____  ______            (1990).  "In view of this deference, successful challenges to            the   proportionality   of  particular   sentences   will  be            'extremely rare.'" Id. (citation omitted).                               ___                 "We  examine the sentence with  a view to  whether it is            grossly  disproportionate, considering the seriousness of the            offense in relation to the harshness of the punishment." Tart                                                                     ____            v.  Massachusetts,  949  F.2d   490,  503  (1st  Cir.  1991).                _____________            Compared  with  the  facts  of  Solem,  where  the  defendant                                            _____            received  a sentence of  life imprisonment for  passing a bad            check, the  sentence received  by appellant  is substantially            less  harsh and the offense is far  more serious.  As we said            in    Tart,   where   no    initial   inference    of   gross                  ____            disproportionality can reasonably be  drawn, there is no need                                         -6-                                          6            to compare  the challenged  sentence with other  sentences in            this or other jurisdictions.  Id. n. 16.                                          ___                 Even if we were to engage in such a comparison, however,            appellant would  not prevail  on his Eighth  Amendment claim.            The statistics  attached to  his PSI  do not  demonstrate the            gross  disproportionality  of  his  sentence.   There  is  no            requirement that  defendants receive a sentence  equal to the            average or median sentence imposed on defendants convicted of            similar  offenses.     Moreover,  that  appellant's  sentence            exceeded the  average and median sentences  does not indicate            that it is outside of the  range of sentences imposed for the            offenses of which he  was convicted, or in any  other respect            grossly  disproportionate  to  those  offenses.  Nor  is  the            appellant entitled  to precisely the same  sentence as others            convicted with him.                   United  States v.  Cannistraro, 871  F.2d 1210  (3d Cir.                 ______________     ___________            1989), on which appellant relies, is distinguishable.  There,            the  court   held   that   appellant's   sentence   was   not            disproportionate  but  that his  "right  to  be sentenced  on            accurate and  reliable information"  may have  been violated.            The  court  remanded  the  case to  the  district  court  for            resentencing  if  the  court  relied  upon  statistical  data                          __            contained in the  PSI setting forth sentences  given to other            fraud defendants, and if it misinterpreted the meaning of the                              ___            data.  There is no indication  in this case that the district                                         -7-                                          7            court  misinterpreted  the   statistical  data  appended   to            appellant's  PSI   or  that   it  relied  upon   that  data.2            Therefore, there is  no showing that appellant's  right to be            sentenced on accurate and reliable information was violated.                 Affirmed.                 _________                                            ____________________            2.   The transcript of the sentencing hearing, if one exists,            was not filed with the district court.  Therefore, it was not            available for our review.  It is, of course, settled that the            appellant  must bear the onus of  any uncertainty arising out            of  an incomplete record on  appeal.  See  Real v. Hogan, 828                                                  ___  ____    _____            F.2d 58, 60 (1st Cir. 1987).                                         -8-                                          8
