United States v. Martes Reyes ( 1997 )

[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1562
UNITED STATES OF AMERICA,
Appellee,
v.
FELIX A. MARTES-REYES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lagueux*, District Judge.
Rafael Anglada-Lopez on brief for appellant.
Guillermo Gil , United States Attorney, Jos A. Quiles-
Espinosa, Senior Litigation Counsel, Sonia I. Torres and Nelson
P rez-Sosa, Assistant United States Attorneys, on brief for the
United States.
June 10, 1997
*Of the District of Rhode Island, sitting by designation.
Per Curiam. This is a single-issue sentencing appeal.
Per Curiam.
Affording de novo review to the district court's interpretation
of the sentencing guidelines and its application of governing
legal principles, see United States v. Lindia, 82 F.3d 1154, 1159
(1st Cir. 1996), we conclude that the court did not err in
sentencing the appellant to 18 months of imprisonment after
revoking his probation.
We set the stage. On October 14, 1992, a federal grand
jury sitting in Puerto Rico returned an indictment charging the
appellant with attempting to use an altered United States
passport while applying for admission to the United States. See
18 U.S.C. 1543. After some preliminary skirmishing, not
relevant here, the appellant pled guilty. On December 18, 1992,
the court sentenced the appellant to 36 months probation. The
conditions of his probation included the following: the
appellant, while on probation, would neither commit another crime
nor illegally possess a controlled substance, and, if deported or
granted voluntary departure, he would remain outside the United
States unless he obtained prior written authorization from the
pertinent authorities and met other benchmarks.
On August 24, 1995, the appellant's probation officer
notified the district court that the appellant had violated these
conditions. The probation officer reported that, in 1994, the
appellant had been arrested and convicted in New York for selling
cocaine; and that, on March 1, 1995, Customs agents had arrested
and charged him with unlawful entry, false use of a passport, and
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misuse of a visa.
On September 21, 1995, the district court held a show-
cause hearing at which the court found that probable cause
existed to believe that the appellant had violated the conditions
of his probation. On October 5, 1995, the court held a further
hearing. At the conclusion of this hearing, the court revoked
the term of probation which had been imposed in 1992 and
sentenced the appellant to 18 months imprisonment. This appeal
followed.
Revocation of probation is governed generally by 18
U.S.C. 3565(b) and the policy statements contained in USSG
7B1.3. Policy statements are advisory in nature, see USSG Ch.7,
Pt.A, intro. comment.; United States v. O'Neil, 11 F.3d 292, 301
(1st Cir. 1993), but when correctly applied they carry great
weight. See Stinson v. United States, 508 U.S. 36, 42 (1993);
United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994). Under
them, revocation of probation is mandatory if the defendant
commits a Grade A violation, see USSG 7B1.3(a)(1), such as a
controlled substance offense. See 18 U.S.C. 3565(b)(1); see
also 18 U.S.C. 3563(a)(3); USSG 7B1.1(a)(1)(ii). Distributing
a controlled substance constitutes a controlled substance offense
for this purpose. See USSG 4B1.2(2).
Viewed against this backdrop, the appeal is easily
resolved. The New York conviction for selling cocaine
constituted all that was needed to revoke the appellant's
probation. See 18 U.S.C. 3565(b)(1); USSG 7B1.3(a)(1); see
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also USSG 4B1.2(2). The appellant's glossover of the cocaine
sale and his concomitant attempt to portray himself as having
committed only a Grade B violation is disingenuous. The short of
the matter is that the cocaine sale constituted a Grade A
violation, carrying with it a suggested range of 12 to 18 months
of imprisonment in the ensuing revocation-of-probation
proceeding. See USSG 7B1.4(a). The sentence that the district
court meted out is within this range and is, therefore, entirely
appropriate.1
We need go no further. For the reasons discussed
herein, the appellant's sentence is summarily affirmed. See 1st
Cir. R.27.1.
1In his reply brief, the appellant takes a different tack.
He contends that he should have been sentenced based on a Grade B
violation because the drug offense that led to the revocation of
probation occurred before the district court imposed the
probationary sentence. This contention confuses the facts. The
court sentenced the appellant to serve a term of probation in
1992. The drug offense transpired almost two years later.
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