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
amended as follows:

Court issued

on

March 25,

On page 5, line 16, delete the word "other."

1993, is

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[NOT FOR PUBLICATION]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.
Appellant

was

convicted

on

We affirm.

January

21,

1988,

of

conspiracy and
in

violation

possession with intent to distribute cocaine,

of

21

U.S.C.

846

(b)(1)(B). The

offenses for which he

in

September

August and

motions

for a new

court.

motion for a new trial. See

___
554

(1st

sentenced

Cir.

1989).

Appellant

Both were

This court affirmed the

841(a)(1)

and

was convicted occurred

of 1987.

trial.

and

filed

two

denied by the district

denial of appellant's second

United States v. Uribe, 890 F.2d

_____________
_____

On

July

14,

1988, appellant

was

to eleven years in prison and a ten-year period of

supervised release.
Appellant
U.S.C.

2255.

filed

two separate

The district

under Fed.

a Motion for Judicial

Sentencing Modification.

court denied the motion

filed

R. Crim.

R.

filing.

Crim. P.
The

P. 35(b).

35(a), which

district court

reconsideration, finding

to 28

Notice

was untimely

Appellant

moved for

his motion was pursuant to

imposes

no time

denied appellant's

that the "sentence

-3-

On

The district

on the grounds that it

reconsideration on the basis that

Fed.

pursuant

court denied both motions.

June 15, 1992, appellant filed

and Consideration of

motions

limits on
motion for

was within

the

range of possible sentences provided by

law."

Uribe appeals

from the denial of the last two motions.

Appellant's
35(b),

motion, if

pursuant

was untimely filed.

P.

committed prior to November 1,

imposes no time limits on filing, it only provides for

the correction
argue

R. Crim.

Although former Fed. R. Crim. P.

35(a), applicable to offenses

1987,

to Fed.

of "illegal"

that his

sentence

sentences.

is illegal

narrow meaning we have given

Rule 35(a).

See,
___

Appellant

within the

does not
relatively

to that term in the context

e.g., United States v. Ames,

____ _____________
____

of

743 F.2d 46,

47 (1st Cir. 1984), cert. denied, 469 U.S. 1165 (1985).

_____ ______
Even if we construe
to 28

U.S.C.

2255,

are without merit.

appellant's motion as made pursuant

we conclude that
Appellant

well within the statutory

was convicted.1
committed
court

has no

limits allowed
886
is

concedes that he was sentenced

limits for the crimes of

The general rule

before November
control over

appellant's arguments

1, 1987,

with respect to
is that

a sentence

which he
offenses

"the appellate

which is

within the

by a statute." United States v. Ruiz-Garcia,

______________
___________

F.2d 474, 476 (1st Cir. 1989) (citation omitted).

There

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

____________________

Appellant has failed

F.2d

1,

(1st Cir.

to show that his sentence

1989).

falls within

that band of exceptions. We address his arguments below.

Appellant first argues that
committed
required

prior to
the

Guidelines
therefrom.
only
States
______

November 1,

district

court

in sentencing
We reject

to offenses

even though his offense was

1987, 18
to

him and

consider

v. Uribe, 890 F.2d

_____

at 563.

the

to explain

this argument.

committed after

U.S.C.

3553(b)
Sentencing

any departure

The Guidelines apply

November 1,

1987. United
______

"In this pre-Guidelines

case, the district court was free to disregard the Guidelines

and exercise

its sound

discretion in formulating

sentence within the statutory limits." Id.

a condign

___
Appellant's

second argument

"disproportionate"
prohibition
this
his

in violation

terms of

punishment.

imprisonment

release.

The

his sentence

the Eighth

Amendment's
In support of

received

and a

other

is

sentences received by

One co-defendant

concurrent nine-year terms of

of

that

to the lighter

co-defendants.

supervised

term

of

on cruel and unusual

claim, he refers

seven-year

is

concurrent

four-year term

co-defendant

of

received

imprisonment and an eight-year

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

-55

convicted

of

similar crimes

was 71

months and

the median

sentence was 60 months.

The
requires a
for which

Supreme Court

has held

that the

Eighth Amendment

prison sentence to be proportionate

the defendant has

to the crime

been convicted. Solem

v. Helm,

_____
463 U.S.

277, 289-90 (1983).

however,

the Court

great

also

deference to

determining

As we

have previously

advised reviewing

the broad

sentencing

and

of

noted,

courts to

authority of

limits

____

give

legislatures in
trial

courts

in

sentencing defendants. See United States v. Glantz, 884 F.2d

___ ______________
______
1483, 1487
(1990).
the

(1st

Cir. 1989),

cert.
_____

denied, 493
______

U.S.

1086

"In view of this deference, successful challenges to

proportionality

of

particular

sentences

will

be

'extremely rare.'" Id. (citation omitted).

___
"We
grossly

examine the sentence with

a view to

whether it is

disproportionate, considering the seriousness of the

offense in relation to the harshness of the punishment." Tart

____
v.

Massachusetts,
_____________

Compared

with

received

a sentence of

check, the

the

949

F.2d

facts

490,

of

Solem,
_____

where

by appellant

less

harsh and the offense is far

in

Tart,
____

no

(1st

initial

disproportionality can reasonably be

-66

Cir.
the

life imprisonment for

sentence received

where

503

1991).

defendant

passing a bad

is substantially

more serious.
inference

As we said
of

gross

drawn, there is no need

to compare

the challenged

sentence with other

this or other jurisdictions.

sentences in

Id. n. 16.
___

Even if we were to engage in such a comparison, however,

appellant would
The statistics
gross

not prevail
attached to

disproportionality

requirement that

on his Eighth

Amendment claim.

his PSI

do not

his

sentence.

of

demonstrate the
There

defendants receive a sentence

is

no

equal to the

average or median sentence imposed on defendants convicted of

similar

offenses.

exceeded the

Moreover,

appellant's

average and median sentences

that it is outside of the

offenses of which he
grossly

that

appellant entitled

does not indicate

range of sentences imposed for the

was convicted, or in any

disproportionate

sentence

to

those

other respect

offenses.

to precisely the same

Nor

is

the

sentence as others

convicted with him.

United States v.
______________

Cannistraro, 871
___________

F.2d 1210

(3d Cir.

1989), on which appellant relies, is distinguishable.

the

court

held

disproportionate

that
but

appellant's

that his

"right

sentence
to

There,

was

be sentenced

not
on

accurate and
The

court

reliable information"
remanded

resentencing

if
__

contained in the

the

the

case to

court

may have
the

relied

been violated.

district

upon

court

statistical

PSI setting forth sentences

for
data

given to other

fraud defendants, and if it misinterpreted the meaning of the

___
data.

There is no indication

in this case that the district

-77

court

misinterpreted

appellant's

PSI

Therefore, there is

or

the
that

statistical
it

relied

data
upon

no showing that appellant's

appended
that

to

data.2

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).
-88