Ospina v. United States
U.S. Court of Appeals for the First Circuit
Ospina v. United States
Opinion
USCA1 Opinion
August 24, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2394
MOISES DIEGO OSPINA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Moises Diego Ospina on brief pro se.
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A. John Pappalardo, United States Attorney, and Paula J.
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DeGiacomo, Assistant United States Attorney, on brief for
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appellee.
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Per Curiam. Appellant, Moises Diego Ospina, pled
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guilty to four counts of conspiring to distribute and
distributing cocaine. He was sentenced to 63 months'
imprisonment on December 18, 1990. Appellant did not appeal
the sentence, but in May, 1992 filed a motion pursuant to 28
U.S.C. 2255 to vacate, set aside or correct sentence. The
district court dismissed the petition. We affirm.
Appellant raised three issues in his 2255 motion.
First, he argued that the sentence was imposed in violation
of Fed. R. Crim. P. 32(a)(1)(A) because the district court
failed to determine that appellant had had an opportunity to
read his Pre-Sentence Report ("PSR"). Second, appellant
contended the district court violated Fed. R. Crim. P.
32(c)(3)(D) by failing to give him an opportunity to contest
factual inaccuracies in his PSR. Finally, appellant argued
that his sentence violated the Eighth Amendment's prohibition
against cruel and unusual punishment because it was
disproportionate to the sentence imposed upon his co-
defendant. We address each of appellant's contentions in
turn.
Fed. R. Crim. P. 32(a)(1)(A)
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Rule 32(a)(1)(A) provides that at the sentencing
hearing, and before imposing sentence, the district court
shall "determine that the defendant and defendant's counsel
have had the opportunity to read and discuss the [PSR]." At
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appellant's sentencing hearing, the following exchange
occurred between appellant's attorney, William A. Brown, and
the sentencing judge regarding the PSR:
THE COURT: Mr. Brown, have you and your client
had an opportunity to review the presentence
report?
MR. BROWN: Yes, Your Honor. for the record,
it was sent to him several weeks ago in Danbury.
He advised me this morning that he had not received
it. I don't know why the mail hadn't got through
to him in prison, but apparently it hadn't.
THE COURT: Well, has he had an adequate
opportunity now to review the presentence report?
MR. BROWN: He has had an opportunity to review
the report. And it is my understanding that there
are no additions or corrections thereto as to any
factual matters set forth therein.
THE COURT: All right. . . .
The court, after hearing from appellant's counsel, asked
appellant directly if he had anything further to say.
Appellant spoke, through an interpreter, about the influences
on the street that had led him into criminal conduct and his
regrets over that conduct. He did not object that he had not
seen the PSR.
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Appellant contends on appeal, as he did for the
first time in his 2255 motion, that he did not see the PSR
prior to or at his sentencing hearing. He argues that the
district court erred by failing to ask appellant himself if
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he had reviewed the PSR and whether he had any objections
thereto. "However, binding precedent in this circuit has
directed that if it is abundantly clear from the sentencing
hearing that both defendant and his counsel are familiar with
the report, a new sentencing hearing will not be mandated,
even if the court failed to directly inquire whether the
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defendant had an opportunity to review the report." United
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States v. Manrique, 959 F.2d 1155, 1157 (1st Cir. 1992)
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(emphasis added). See United States v. Cortez, 841 F.2d 456,
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460 (2d Cir.), cert. denied, 486 U.S. 1058 (1988) (holding
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that it is not necessary for the district court to personally
question the defendant as to whether he has read the PSR).
In this case, appellant's attorney specifically
stated that he and his client had had an opportunity to
review the PSR. "All that is required by Rule 32(a)(1)(A) is
that the court determine that the defendant and his counsel
have had the opportunity to read and discuss the report."
United States v. Serino, 835 F.2d 924, 931 (1st Cir. 1987).
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The record indicates that the district court made such a
determination. Therefore, there was no violation of Rule
32(a)(1)(A).
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Fed. R. Crim. P. 32(c)(3)(D)
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Appellant argues that the sentencing court violated Rule
32(c)(3)(D) by failing to give him an opportunity to contest
factual inaccuracies in his PSR. Rule 32(c)(3)(D), however,
merely requires that if defendant alleges any factual
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inaccuracies in the PSR, "the court shall, as to each matter
controverted, make (i) a finding as to the allegation, or
(ii) a determination that no such finding is necessary
because the matter controverted will not be taken into
account in sentencing." Fed. R. Crim. P. 32(c)(3)(D). In
this case, defendant did not allege any factual inaccuracies
in the PSR. At the sentencing hearing, appellant's counsel
specifically stated with respect to the PSR that "there are
no additions or corrections thereto as to any factual matters
set forth therein." When the sentencing judge gave appellant
an opportunity to speak, he did not allege any factual
inaccuracies or other objections to the PSR.1
Appellant argues that because he was not provided
with a copy of the PSR until after sentencing, he was denied
an opportunity to contest factual inaccuracies contained
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1. Appellant to date has failed to identify any factual or
other errors in his PSR. In his 2255 petition, appellant
merely made the following general statement:
Now, that the defendant has a copy of the report,
he has discovered many issues to which he would
have challenged at the sentencing if he had been
given the opportunity.
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therein. Rule 32(c)(3)(A) requires that the court afford the
defendant and his counsel "an opportunity to comment on the
report and, in the discretion of the court, to introduce
testimony or other information relating to any alleged
factual inaccuracy contained in it."
It is apparent from the transcript of the
sentencing hearing that the court gave appellant and his
counsel the requisite opportunity to comment on the PSR.
Appellant's counsel specifically informed the sentencing
judge that there were no additions or corrections that
appellant wished to make to the PSR. In addition, when the
court gave appellant an opportunity to speak on his behalf,
he did not claim either that he had not had an opportunity to
review the PSR or that he had any objections thereto.2
Therefore, the sentencing court did not violate appellant's
rights under Rule 32(a)(3).
Disproportionate Sentence
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Appellant was arrested and indicted with a co-
defendant, Matias Contreras-Liriano. While appellant was
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2. Appellant argues for the first time on appeal that the
reason he did not inform the court that he had not had an
opportunity to review the PSR was that he does not speak
English and that he was instructed by his attorney to remain
silent except to apologize for his behavior when the court
addressed him personally. The record from the sentencing
hearing, however, indicates that appellant was provided with
an interpreter. Indeed, he made a statement to the court
through an interpreter, during which he could have informed
the court that he had not been provided with a copy of the
PSR.
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charged with four counts of conspiring to distribute and
distributing cocaine, Mr. Contreras was charged with only
three of the counts in the indictment. Appellant and Mr.
Contreras were sentenced together. At the sentencing
hearing, the court noted that based on the defendants' PSRs
the total offense level was 26 and the criminal history
category was one for both defendants. Therefore, the court
calculated an imprisonment range of 63 to 78 months. Neither
defendant objected to that calculation. The district court
sentenced appellant at the low end of the guideline range to
63 months imprisonment. In response to the government's
motion under 5K1.1 of the Sentencing Guidelines, the court
departed downward from the guidelines imprisonment range and
sentenced Mr. Contreras to 42 months' imprisonment to take
account of his cooperation. The government did not make a
5K1.1 motion with respect to appellant, nor does appellant
contend that he provided the requisite cooperation.
Instead, appellant complains that his sentence is
disproportionate to the sentence received by his co-defendant
and other similarly situated defendants, in violation of the
Eighth Amendment. He further contends, for the first time on
appeal, that his higher sentence is the impermissible result
of his having exercised his Fifth Amendment right to refuse
to cooperate with the government by providing information
about his and others' involvement in the offense.
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It is well established that "a defendant is not
entitled to a lighter sentence merely because his co-
defendants received lighter sentences." United States v.
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Gomez-Pabon, 911 F.2d 847, 862 (1st Cir. 1990), cert. denied,
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498 U.S. 1074 (1991). And, under the sentencing guidelines,
disparity in sentencing outcomes as among codefendants cannot
justify a departure from the sentencing range. See United
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States v. Wogan, 938 F.2d 1446, 1448-49 (1st Cir. 1991).
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Therefore, even if appellant and his co-defendant had been
similarly situated, the lighter sentence received by
appellant's co-defendant would not establish that appellant
received a disproportionate sentence. Nor has appellant
presented any other evidence that his sentence, which he does
not deny is within the statutory limits, is disproportionate.
Appellant did not raise his Fifth Amendment claim
in his 2255 motion. Therefore, it is not cognizable on
appeal. See Santiago v. United States, 889 F.2d 371, 377 (1st
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Cir. 1989) (refusing to address on appeal matter not
presented in appellant's 2255 petition). Even if we were
to consider it, appellant would not prevail. We have held
that to deny a defendant a reduction in his offense level for
acceptance of responsibility under 3E1.1 of the Sentencing
Guidelines because defendant does not admit criminal conduct
beyond the offense charged would violate the defendant's
Fifth Amendment right not to incriminate himself. United
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States v. Perez-Franco, 873 F.2d 455, 463 (1st Cir. 1989).
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Here, however, appellant argues that the denial of a
reduction in his sentence under 5K1.1 where he refused to
cooperate with the government violates the Fifth Amendment.
Unlike 3E1.1, which requires admission by defendant of his
own criminal activities, 5K1.1 is "directed to the
prosecution of criminal activities by persons other than the
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defendant." U.S.S.G. 5K1.1, application note 2 (emphasis
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added). Nor has appellant alleged that the government sought
his cooperation regarding any offenses other than those to
which he pled guilty. Therefore, appellant has failed to
demonstrate that the government's failure to move for
departure under 5K1.1 where he refused to cooperate
constitutes an impermissible penalty for his exercise of his
Fifth Amendment right not to incriminate himself.
For the foregoing reasons, the district court's
denial of appellant's 2255 motion is affirmed.
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