
USCA1 Opinion

	




          November 12, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2357                                     UNITED STATES,                                      Appellee,                                          v.                              JOSE E. BONILLA-MARTINEZ,                                Defendant, Appellant.                                 ____________________        No. 93-1517                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                MARIO TORRES-MELENDEZ,                                Defendant, Appellant.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Carlos  R.  Noriega  on  brief  for  appellant,  Jose  E. Bonilla-            ___________________        Martinez.            John  C. Keeney,  Acting  Assistant  Atttorney  General, Mary  Lee            _______________                                          _________        Warren, Chief,  and  William H.  Kenety, Narcotic  and Dangerous  Drug        ______               __________________        Section, on brief for appellee - No. 92-2357.            Jeffrey A. Rabin on brief for appellant, Mario Torres-Melendez.            ________________            Charles E.  Fitzwilliam, United States  Attorney, John  C. Keeney,            _______________________                           _______________        Acting Assistant Attorney General,  Mary Lee Warren, Chief,  and Julie                                            _______________              _____        J. Shemitz, Attorney,  Criminal Division, Narcotic and  Dangerous Drug        __________        Section, on brief for appellee - No. 93-1517.                                 ____________________                                 ____________________                 Per Curiam.  Appellants,  Mario Torres-Melendez and Jose                 __________            Bonilla-Martinez, were charged with having been involved in a            large  scale  drug  conspiracy  which  ran  from  1985  until            appellants and others were indicted in 1990.  Torres-Melendez            pled  guilty to conspiracy to import  cocaine in violation of            21  U.S.C.   846 and was  sentenced to a term of imprisonment            of 292 months.  Bonilla-Martinez  pled guilty to one count of            conspiracy  to possess  with  intent  to distribute  cocaine,            marijuana and heroin, in violation of 21 U.S.C.    841(a) and            846.   He  was  sentenced  to  87  months  imprisonment,  the            sentence to  be served  concurrently with  a sentence  of 264            months imprisonment  imposed upon him in another  case.  Both            appellants appeal their sentences.            Bonilla-Martinez            ________________                 Bonilla-Martinez' sole argument  on appeal  is that  the            sentencing  court erred when it enhanced his criminal history            2 points, pursuant to U.S.S.G.   4A1.1(b), because of a prior            sentence  of imprisonment of  at least sixty  days.  Bonilla-            Martinez contends that  since the criminal conduct  for which            he  was sentenced  in  that  prior  case occurred  after  the            criminal conduct  for which  he was  indicted in  the instant            case,  the  sentence  in  the  first case  is  not  a  "prior            sentence" under the guidelines.                  According to  the application notes, a  "prior sentence"            under   4A1.1  "means a sentence imposed  prior to sentencing            on  the instant  offense, other than  a sentence  for conduct            that is  part of  the instant offense.   See    4A1.2(a).   A                                                     ___                _            sentence  imposed after  the defendant's commencement  of the            _____________________________________________________________            instant  offense,  but  prior to  sentencing  on  the instant            _____________________________________________________________            offense, is a prior sentence if it was for conduct other than            _____________________________________________________________            conduct that  was part of  the instant offense."   U.S.S.G.              _______________________________________________            4A1.2, comment. (n.1) (emphasis added); see U.S.S.G.   4A1.1,                                                    ___            comment. (n.1) (term "prior sentence" defined at   4A1.2(a)).            Appellant does not contend that the conduct in the prior case            was part of the instant offense.                   Appellant's  contention  that  his  prior  sentence  for            conduct  unrelated to  the  present  offense  should  not  be            counted  simply  because  that  offense  occurred  after  the            present  offense  is  belied  by the  plain  language  of the            application  notes and  has been  rejected  by every  circuit            court which has  considered this  issue.   See, e.g.,  United                                                       ___  ___    ______            States v. Tabaka, 982 F.2d 100, 101-02 (3d Cir. 1992); United            ______    ______                                       ______            States v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992); United            ______    ______                                       ______            States v.  Hoy, 932 F.2d  1343, 1345 (9th Cir.  1991); United            ______     ___            States  v. Walker,  912  F.2d 1365  (11th  Cir. 1990),  cert.                       ______                                       ____            denied, 498  U.S. 1103 (1991);  United States  v. Smith,  900            ______                          _____________     _____            F.2d 1442, 1446-47 (10th Cir. 1990).  We too find no merit in            appellant's contention.                                         -3-            Torres-Melendez            _______________                 Torres-Melendez raises three claims.  First, he contends            that  the court  erred when it  increased his  offense level,            pursuant  to U.S.S.G.    3B1.3,  because he  "used a  special            skill,   in  a  manner  that  significantly  facilitated  the            commission . . .  of the offense."   Second,  he asserts that            the court erred in its determination of  his criminal history            category.   Third, he contends that his counsel at sentencing            was constitutionally ineffective.  Since neither of the first            two issues were raised below,  we review them only for "plain            error."   "Under this standard, we review only 'blockbusters:            those  errors  so  shocking that  they  seriously  affect the            fundamental fairness and basic  integrity of the  proceedings            conducted  below.'"  United States v. Olivo-Infante, 938 F.2d                                 _____________    _____________            1406, 1412 (1st Cir. 1991) (quoting United States v. Griffin,                                                _____________    _______            818  F.2d 97,  100  (1st  Cir.), cert.  denied  484 U.S.  844                                             ____   ______            (1987)).                 The presentence report, adopted by the sentencing court,            found  that Torres-Melendez  had "utilized his  knowledge and            expertise  in   welding  to   facilitate  the  smuggling   of            controlled  substances  into  U.S. Territory."    The  report            indicates  that he  had welded  compartments onto  industrial            lawn  mowers into  which  cocaine was  secreted, that  he had            modified an automobile gas tank  to hold cocaine, that he had            opened and then resealed the  cylinder of a steamroller  into                                         -4-            which cocaine  was packed,  and that he  had constructed  two            steel  tanks  used  to  transport  molasses  which  concealed            cocaine.   These acts  clearly facilitated the  commission of            the offense  for which  appellant was  sentenced.   Appellant            contends,  however, that welding is not  a "special skill" as            contemplated by the guidelines.                  The guidelines explain a "special skill" as "a skill not            possessed  by members  of  the  general  public  and  usually            requiring  substantial  education,   training  or  licensing.            Examples would include pilots, lawyers, doctors, accountants,            chemists,  and  demolition  experts."    U.S.S.G.      3B1.3,            comment. (n.1);  see also United States v.  Connell, 960 F.2d                             ___ ____ _____________     _______            191, 197-98 (1st  Cir. 1992).  Welding of  the sort performed            by appellant  during the  course of the  conspiracy is  not a            skill   "possessed  by  members  of  the  general  public."              Appellant  contends, however,  that welding  is  not a  skill            requiring  "substantial  education, training  or  licensing."            Even if we were to  agree, the guidelines indicate that these            characteristics  are not always required for a finding that a            defendant possesses a "special skill."   See United States v.                                                     ___ _____________            Spencer,  Nos. 93-1041/1042, 1993  U.S. App. LEXIS  21651, at            _______            *14 (2d  Cir. Aug. 25,  1993) ("Because the comment  adds the            word 'usually,' we find no basis for limiting the increase to            only those with formal educations or  professional skills.");            United States v.  Hummer, 916 F.2d 186, 191  (4th Cir. 1990),            _____________     ______                                         -5-            cert. denied, 111 S.Ct. 1608 (1991) (use of term "'usually' .            ____  ______            .  . implies  that substantial  training is  not a  mandatory            prerequisite to making a special skills adjustment").  Hence,            we cannot  say, as  a matter of  law, that  welding is  not a            "special skill" as contemplated by section 3B1.3.                 As far as  the application of the guideline to appellant            is  concerned, we do  not ordinarily consider  a challenge to            the application of a particular guideline when that challenge            has not been raised in the court below.  See United States v.                                                     ___ _____________            Pilgrim Market Corp., 944 F.2d 14,  21 (1st Cir. 1991).   The            ___________________            rationale   behind  this  rule  is,  in  part,  that,  absent            objection, "the district  court had a  right to believe  that            defendant agreed that  the facts [in the  presentence report]            were true and accurate."   Id., (quoting United States v. Fox                                       __            _____________    ___            889  F.2d   357,  359   (1st  Cir.   1989).    Further,   the            determination   of  whether   appellant's  particular   skill            justifies  an  increase  under section  3B1.3  is  "likely to            involve  drawing  sophisticated  inferences  from  a  web  of            interconnecting  facts." Connell, 960 F.2d at 198.  "[W]hen a                                     _______            defendant fails to raise the  issue below, we have no factual            record   by  which   to  review   the   application  of   the            guidelines."1  United States v.  Saucedo, 950 F.2d 1508, 1518                           _____________     _______            (10th Cir. 1991).   In these circumstances, we  find no plain                                            ____________________            1.  The  factual record we  do have indicates  that, although            appellant  had   little  formal   education,  "through   work            experience he became an . . . excellent welder."                                          -6-            error  in the court's  increase of appellant's  offense level            for possession  of a "special  skill."  Cf. United  States v.                                                    __  ______________            Lopez, 923  F.2d 47, 50  (5th Cir.), cert. denied,  111 S.Ct.            _____                                ____  ______            2032  (1991) ("[q]uestions of  fact capable of  resolution by            the  district court upon  proper objection at  sentencing can            never constitute  plain error");  Saucedo, 950  F.2d at  1508                                              _______            (same).                 Torres-Melendez also  contends that  the court  erred in            assigning him a criminal  history category of III.   Category            III  includes defendants who have accumulated between 4 and 6            criminal  history points.  Appellant concedes that 2 criminal            history  points were  properly assigned  to  him pursuant  to            U.S.S.G.    4A1.1(d) because he committed the instant offense            while on probation.  However, he asserts that  the assignment            of 3 criminal points pursuant to   4A1.1(a) was in error.  He            claims that only 1 point should have been added and therefore            that his criminal history category is properly II.                   According  to  his  presentence  report,  appellant  was            sentenced   to  a  three   year  term  of   imprisonment  for            involuntary manslaughter/vehicular  homicide in  June 1983.              After three months, this sentence was modified to probation.             The  proper  number of  points  to  be added  to  appellant's            criminal history category  depends on  whether appellant  was            incarcerated between June and September 1983, a fact not made            clear  by  the   presentence  report.    If   appellant  were                                         -7-            incarcerated, 2 points should have been added to his criminal            history category.   See U.S.S.G.   4A1.1(b)  ("[a]dd 2 points                                ___            for  each prior  sentence of imprisonment  of at  least sixty            days");  id.    4A1.2,  comment.  n. 2  ("[t]o  qualify as  a                     __            sentence  of imprisonment,  the defendant must  have actually            served a  period of  imprisonment on  such sentence"). If  he            were  not, however, his criminal history category should have            been increased  only 1 point.   See id.   4A1.1(c)  ("[a]dd 1                                            ___ __            point for  each prior sentence  not counted in (a)  or (b)").            In any  event,  the government  concedes  that the  3  points            assigned by the  presentence report was in  error.2  However,            it contends  that the  error  was harmless  because 2  points            should  have been added  to appellant's criminal  history and            this change would not affect his criminal history category.                 Once again, the  failure to raise the objection below is            fatal to appellant's  claim.  Absent an  adequately developed            factual  record,  we  are without  any  means  of determining            whether the court's  admitted error in assigning  appellant 3            criminal history  points  was  anything  more  than  harmless            error. Thus, we are unable  to say that assigning appellant a                                            ____________________            2.  The  record   contains  two  different   copies  of   the            presentence report, one  of which assigns 3  criminal history            points for  the 1983 sentence,  the other 2.   Both appellant            and  the government assume that the court assigned 3 criminal            history  points.   Neither  makes  any mention  of  the other            version of the  presentence report.  For  purposes of review,            we too assume that the court added 3 points.                                         -8-            criminal history  category  of III  was  plain error.3    See                                                                      ___            supra.              _____                 Finally,  Torres-Melendez   asserts  that   he  received            ineffective  assistance of counsel at sentencing.  Since this            claim  was  not  raised  below,  this  court  has  neither  a            developed  factual  record  sufficient  to sustain  appellate            review nor the  evaluation of the sentencing court  as to the            merits of the  claim.  In such circumstances,  this court has            repeatedly  indicated that the  proper vehicle for  raising a            claim of  ineffective  counsel is  through  the filing  of  a            petition  under 28  U.S.C.     2255.   See  United States  v.                                                   ___  _____________            Sanchez, 917 F.2d 607, 612  (1st Cir. 1990), cert. denied 111            _______                                      ____  ______            S.Ct. 1625 (1991) (citing cases).                 Affirmed.                 ________                                            ____________________            3.    Appellant's sentence  of 292  months  falls within  the            range of 262-327 months to  which he would be subject if  his            criminal history category  were II.  Appellant  has presented            no  evidence, and  the record  reveals none,  that  the court            would  have  imposed a  lesser  sentence  if the  range  were            different.                                         -9-
