Lau v. United States ( 1994 )

USCA1 Opinion

          November 9, 1994      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


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        No. 94-1358

                                   MICHAEL A. LAU,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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                                        Before

                                 Selya, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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            Michael A. Lau on brief pro se.
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            Guillermo  Gil,   United  States   Attorney,  Antonio   R.  Bazan,
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        Assistant United States Attorney, and Jose A. Quiles-Espinosa,  Senior
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        Litigation Counsel, on brief for appellee.


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                 Per  Curiam.   Michael  Lau  and  his codefendant  Bruce
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            Taylor  were each convicted in December 1985 at a joint trial

            on drug charges.  Lau was sentenced to 35 years and Taylor to

            25  years  and their  convictions  were  affirmed on  appeal.

            United States v.  Lau, 828  F.2d 871 (1st  Cir. 1987),  cert.
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            denied,  486   U.S.  1005   (1988).    Based   on  subsequent
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            cooperation, the  sentences were  later reduced, Lau's  to 25

            years  and Taylor's to 15 years.   Lau now appeals the denial

            of his  recent  motion under  28 U.S.C.    2255  in which  he

            challenged the 10 year disparity in  his sentence as compared

            with that  of Taylor.  He claims that the two were similar in

            culpability and history and that the only explanation for the

            disparity   is  the   trial  judge's   remarks  at   Taylor's
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            sentencing, that suggested that Taylor was led astray by Lau.

            This, says Lau, is untrue.  

                 The Sentencing Guidelines did not apply to this case and

            the sentencing judge therefore had extremely wide discretion,

            largely beyond  appellate review.  See  Williams v. Illinois,
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            399 U.S.  235, 243  (1970).   The Supreme  Court did say,  in

            United  States v. Tucker, 404  U.S. 443, 447  (1972), that an
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            appellate  remedy  may  be available  where  a  pre-guideline

            sentence  is founded  upon "misinformation  of constitutional

            magnitude"; but in that case  the sentencing judge had relied

            on  two prior  convictions  that had  been unconstitutionally

            obtained.   "Instead of confronting  a defendant who had been



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            legally convicted  of three previous felonies,  the judge [if

            properly  informed] would then  have been dealing  with a man

            who,  beginning  at  age  17,  had  been   unconstitutionally

            imprisoned for more than ten years . . . ."  Id. at 448.
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                 Lau's   case  is   not   remotely   comparable.      The

            responsibility  of one  person  for  another's misconduct  is

            generally  a  matter of  degree  and  of  judgment.    Tucker
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            involved  the  perpetuation of  prior  convictions  that were

            later  found to  be unconstitutional.   Further,  the Supreme
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            Court thought that the prejudice in Tucker was patent.  Here,
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            the fact  that the  remark was made  at Taylor's  sentencing,

            rather than  Lau's, suggests  that the court's  impression is

            more likely to  have reduced Taylor's  sentence than to  have

            enlarged Lau's.  Assuming that  there was any misappraisal at

            all, we do not think that it is of constitutional magnitude.

                 There  is some suggestion in  Lau's brief that he thinks

            that  he was entitled to be present at Taylor's sentencing to

            contest the judge's remarks  about Lau's influence on Taylor.

            Fed. R. Crim. P.  43(a) entitles a defendant to be present at

            his own sentencing and not that of another  defendant.  It is

            in fact common  practice for codefendants to  be sentenced at

            different times, depending  on when the respective  probation

            reports are completed.

                 Affirmed.
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