
USCA1 Opinion

	




          November 3, 1992      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1334                                           JOHN J. ZULETA ALVAREZ,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               John J. Zuleta Alvarez on brief pro se.               ______________________               Richard  S.  Cohen,  United  States Attorney,  and  F.  Mark               __________________                                  ________          Terison, Assistant United States Attorney, on brief for appellee.          _______                                  __________________                                 __________________                       Per  Curiam.     Appellant  John  J. Zuleta-Alvarez                      ___________            appeals  pro se from a district court order summarily denying                     ___ __            his  motion  under  28  U.S.C. Section  2255  to  vacate  his            sentence.   We affirm on the ground  that the issue raised on            this appeal was not raised below.                                      Background                                      __________                 On August  16, 1989,  following a jury  trial, appellant            was  convicted of  conspiracy  with intent  to distribute  in            excess  of 500 grams of cocaine and possession with intent to            distribute cocaine.  He  was tried with three co-defendants.1            The  district  court applied  the  sentencing guidelines  and            sentenced appellant to 121  months in prison, at the  low end            of  the applicable  guideline imprisonment  range.   The base            offense  level was 32, based upon a finding, contained in the            pre-sentence report (PSI) and adopted by the court, that "the            total  scope of  the conspiracy  involved 6.762  kilograms of            cocaine."  See U.S.S.G    2D1.1(a)(3) (base offense level  of                       ___            32  where the total amount of cocaine involved in the offense            is greater than 5 and less than 15 kilograms.)                  At  the sentencing  hearing, the  central issue  was the            amount of cocaine  used to calculate the  base offense level.            Appellant argued  that the amount of  cocaine actually seized            by  the  government (769  grams)  was  the proper  amount  of            cocaine to use  in calculating  the base offense  level.   He                                            ____________________            1.   The remaining six  co-defendants named in the indictment            pled guilty or were fugitives at the time of trial.            objected  to the  PSI's  inclusion of  an additional  amount,            5.960 kilograms, based upon "historical evidence"  of amounts            distributed by co-conspirators.  His objections were that the            evidence  was  unreliable and  that  including these  amounts            resulted in double and triple counting.                   Over  objection,  the  sentencing  judge  permitted  the            government to  introduce transcripts of trial  and grand jury            testimony  by witnesses  who  were not  available for  cross-            examination at the sentencing hearing.  Appellant and his co-            defendants appealed  that ruling.   This court  affirmed. See                                                                      ___            United States v. Zuleta-Alvarez, 922 F.2d 33 (1st Cir. 1990),            _____________    ______________            cert. denied, _ U.S. _, 111 S. Ct. 2039 (1991).  We held that            ____  ______            the  sentencing  court did  not  err  in denying  defendants'            request for  live witnesses  and that there  were "sufficient            indicia   of  reliability"   to   support  the   government's            calculation of the drug quantity.                 On December 16, 1991, appellant filed a  motion under 28            U.S.C.   2255 to  vacate his sentence.  Appellant  challenged            the constitutionality of 21  U.S.C.   841, the  statute under            which he was convicted.  He argued that the minimum mandatory            penalties  of that  statute violated  the Eighth  Amendment's            prohibition against cruel and unusual punishment in that they            resulted  in   sentences   disproportionate  to   the   crime            committed.   He also contended that  the statute deprived him            of due process  and equal  protection of the  law because  it                                         -3-            failed  to take into account the purity of the drug involved,            the  role of the  defendant and the  defendant's knowledge of            the amount of the drug involved.   In an order dated March 2,            1992, the district court summarily denied appellant's motion.                                      Discussion                                      __________                 On appeal, giving up his attack on the constitutionality            of the statute under which he was convicted, appellant argues            for  the  first  time  that the  district  court  erroneously            applied the  sentencing guidelines.   Specifically, appellant            argues that the sentencing court erred in basing his sentence            upon the amount of cocaine involved in the entire conspiracy.                 Relying  upon  Seventh  Circuit  case  law  interpreting            U.S.S.G.,     1B1.3  and the  commentary  thereto,  appellant            contends  that the  district court  held him  accountable for            conduct that  was not  "reasonably foreseeable"  by him.   He            argues  that, while  the conspiracy  existed from  July, 1988            until  April, 1989,  the evidence  indicates that he  did not            become involved until "late 1988 or  early 1989."  Therefore,            appellant asserts, the district court erred in calculating an            offense  level based upon the amount of drugs involved in the            entire conspiracy.                 Where an issue is  raised for the first time  on appeal,            our review is narrowly circumscribed:                  We are . . . confined to determining whether or not                 this  is  a case  "'where  a  gross miscarriage  of                                         -4-                 justice  would occur' . .  . . [and  where] the new                 ground [is] 'so compelling  as virtually to  insure                 appellant's sucess.'"            Hernandez-Hernandez v. United States,  904 F.2d 758, 763 (1st            ___________________    _____________            Cir. 1990) (quoting  Johnston v. Holiday  Inns, 595 F.2d  890                                 ________    _____________            (1st Cir. 1979)  (citations omitted)).  In  a recent decision            by this court,  we held that   "[a] sentence on a  conspiracy            charge   [cannot]  be   calculated   by   aggregating   [drug            distributions  made  prior to  defendant's entrance  into the            conspiracy]  because he  was not  a member of  the conspiracy            when they took place." United States v. O'Campo, Nos. 91-1089                                   _____________    _______            and 91-1278,  slip op. at 26  (1st Cir. Sept. 3,  1992).  The            record  in this  case is  unclear about  the exact  date when            defendant entered the conspiracy and whether subtracting drug            distributions which  occurred before  that date  would reduce            his  base offense  level.   Therefore,  we  are not  able  to            conclude that a  gross miscarriage of justice occured or that            this  newly raised issue  is "so  compelling as  to virtually            insure  appellant's  success." Hernandez-Hernandez  v. United                                           ___________________     ______            States, 904 F.2d  at 763 (citations  omitted).  Appellant  is            ______            free to raise  this issue in a new   2255  motion.  We do not            now determine whether or not he would be entitled to relief.                                      Conclusion                                      __________                 The  dismissal  of  appellant's  motion  to  vacate  his            sentence under 28 U.S.C.   2255 is                  Affirmed.                 ________                                         -5-
