Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-1570

UNITED STATES OF AMERICA,

Appellee,

v.

BORIS AYALA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

 Lynch, Chief Judge,

Torruella and Boudin, Circuit Judges.

B. Alan Seidler on brief for appellant and Boris Ayala on

brief pro se.

Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,

United States Attorney, on brief for appellee.

August 28, 2008
Under the guidelines in effect at the time of defendant's 1

sentencing, the marijuana equivalent for one gram of cocaine base

("crack") was 100 times greater than for one gram of powder

cocaine. U.S.S.G. § 2D1.1, comment. (n.10, Drug Equivalency

Tables) (Nov. 1, 2006 ed.).

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Per Curiam. This is defendant Boris Ayala's direct

appeal from his sentence for conspiring to distribute and possess

with intent to distribute cocaine and cocaine base ("crack") and

for possessing cocaine with intent to distribute. After carefully

considering defendant's counseled and pro se briefs and the

underlying district court record, we affirm the sentence for the

reasons discussed below.

A. Issues Related to Crack/Powder Cocaine Disparity

In his counseled brief, defendant argues that the

guidelines' 100-to-1 crack/powder ratio violates equal protection 1

and due process because the recommended punishment for crack

offenses is "unconstitutionally harsh." Because this argument is

undeveloped and unsupported by any authority, we need not address

it at all. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990). If we nevertheless did so, our review would be only for

plain error because, as defendant concedes, this issue was not

raised in the district court. Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 732 (1993). And, because this court

has previously upheld the constitutionality of the 100-to-1

crack/powder ratio against equal protection and Eighth Amendment

proportionality challenges, United States v. Singleterry, 29 F.3d
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733, 741 (1st Cir. 1994) (equal protection); United States v.

Graciani, 61 F.3d 70, 76-77 (1st Cir. 1995) (Eighth Amendment),

this claim would not constitute error, plain or otherwise. For the

same reason, trial counsel was not constitutionally deficient in

failing to raise this argument at sentencing, United States v.

Hart, 933 F.2d 80, 83 (1st Cir. 1991), as defendant further argues.

In his pro se brief, defendant further argues that

because the guidelines have recently been amended to reduce,

retroactively, the suggested penalties for crack offenses, his

sentence should be vacated and the case remanded to the district

court to consider whether to reduce his sentence under the amended

guidelines. That argument is misdirected. The remedy for

defendants who believe that they are entitled to a reduction of

their sentences under the amended crack guidelines is to file a

motion with the district court seeking relief under 18 U.S.C.

§ 3582(c)(2). United States v. Chandler, 2008 WL 2780632, at * 6

(1st Cir. July 18, 2008). 

Defendant's final claim concerning crack/powder disparity

is that he is entitled to a remand for resentencing in light of

Kimbrough v. United States, 128 S. Ct. 558 (2007). Because his

Kimbrough claim was preserved below, a remand on this basis is

warranted unless there was no Kimbrough error, or the error was

harmless. United States v. Tabor, 531 F.3d 688, 692 (8th Cir.

July 10, 2008). 
The same base offense level would have applied if there were 2

no crack involved at all, and the only drug involved was 26.05

kilograms of cocaine. See U.S.S.G. § 2D1.1(c)(3) (providing that

Level 34 applies to "[a]t least 15 KG but less than 50 KG of

Cocaine").

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There was a Kimbrough error. When defendant argued for

a more lenient sentence based on crack/powder disparity, the

district court stated, "[T]hat issue has been decided numerous

times; even within the context of this specific case that ratio is

appropriate," presumably referring to United States v. Pho, 433

F.3d 53 (1st Cir. 2006), and to subsequent decisions reaffirming

Pho's holding that a categorical rejection of the ratio is

impermissible but that the ratio could be considered unfair in

particular case-specific circumstances. Id. at 64-65; see also,

e.g., United States v. Fanfan, 468 F.3d 7, 15 (1st Cir. 2006).

Those comments indicate that the court believed that it was not

free to disregard the crack guideline in a "mine run" case.

Kimbrough rendered that belief erroneous. Kimbrough, 128 S. Ct. at

575.

 However, the Kimbrough error was harmless because even

if the court had ignored the crack guidelines entirely and

sentenced defendant only for the amount of powder cocaine

attributable to him, his base offense level would still have been

the same. In other words, because "the crack/powder dichotomy is 2

irrelevant to the . . . sentence actually imposed in this case[,]

. . . the decision in Kimbrough is of only academic interest here."
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United States v. Jimenez, 512 F.3d 1, 9 (1st Cir. 2007), cert.

denied, 128 S. Ct. 2920 (2008).

B. Issues Related to Judicial Fact-Finding

In his counseled brief, defendant argues, based on

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.

Washington, 542 U.S. 296 (2004), that the district court

unconstitutionally enhanced his sentence based on facts found by a

judge by a preponderance of the evidence rather than by a jury

beyond a reasonable doubt. As this court explained shortly

following United States v. Booker, 543 U.S. 220 (2005), "Booker

reaffirmed the principle of Apprendi . . ., that '[a]ny fact (other

than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea

of guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt,' but did so only

insofar as the sentence resulted from a mandatory system imposing

binding requirements on sentencing judges." United States v.

Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005) (quoting Booker,

543 U.S. at 244). As long as the guidelines are applied in an

advisory manner, as they were here, they "'fall[] outside the scope

of Apprendi's requirement.'" Id. at 76 (quoting Booker at 543 U.S.

at 259). In other words, "Booker both created and cured the

constitutional error at the same time." United States v. Pérez-
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Ruiz, 421 F.3d 11, 15 (1st Cir. 2005). Therefore, defendant's

Apprendi-based argument fails.

To the extent that defendant separately challenges the

court's findings on procedural due process grounds, that argument

is insufficiently developed to warrant appellate consideration.

Zannino, 895 F.2d at 17. Moreover, it is belied by the record,

which demonstrates that defendant was given ample opportunity to

contest the findings made in the Presentence Report ("PSR"), which

he did in only a conclusory manner. In those circumstances, the

court was entitled to rely on the PSR. United States v. Prochner,

417 F.3d 54, 66 (1st Cir. 2005).

To the extent that defendant challenges the accuracy of

the factual findings, our review is only for clear error. United

States v. Robinson, 433 F.3d 31, 38 (1st Cir. 2005). As defendant

conceded below, a sentencing court's determination of drug quantity

"is not required to be an exact determination but rather only a

reasoned estimate." United States v. Rodriguez, 525 F.3d 85, 107

(1st Cir. 2008). And, in making such determinations, the court was

entitled to rely, in part, on hearsay evidence, including grand

jury testimony and information provided by cooperating witnesses.

United States v. Riccio, 529 F.3d 40, 47 (1st Cir. 2008) (hearsay

in general); United States v. Williams, 10 F.3d 910, 914-15 (1st

Cir. 1993) (grand-jury testimony); United States v. Jimenez
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Martinez, 83 F.3d 488, 493-94 (1st Cir. 1996) (statements of

cooperating witnesses).

Here, the district court's findings as to drug amounts

were amply supported by the evidence detailed in the PSR. Rather

than exaggerate the amounts, the PSR's estimates were expressly

"conservative" in several respects. Moreover, any minor error in

computing the drug amounts was harmless, since the same base

offense level would have applied even if the total amount was much

less than the 8,810 kilograms estimated by the PSR. See U.S.S.G.

§ 2D1.1(c)(3) (providing that level 34 applies to the equivalent of

any amount between 3,000 and 10,000 kilograms of marijuana). 

To the extent that defendant challenges the court's

application of a role enhancement, any such challenge was waived by

defendant's abandonment of his prior objection to the role

enhancement once the probation officer agreed to a three-level,

rather than a four-level, enhancement. United States v. Rodriguez,

311 F.3d 435, 437 (1st Cir. 2002). Moreover, a three-level

enhancement based on a defendant's role as a "manager or

supervisor" is appropriate where, as here, "'there is evidence that

a defendant, in committing the crime, exercised control over, or

was otherwise responsible for overseeing the activities of, at

least one other person.'" United States v. Hilario-Hilario, 529

F.3d 65, 77 (1st Cir. 2008) (quoting United States v. Voccola, 99

F.3d 37, 44 (1st Cir. 1996)).
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C. Issues Related to Criminal History

Defendant argues that the district court abused its

discretion in failing to grant a downward departure under U.S.S.G.

§ 4A1.3(b)(1) or to vary below the guidelines range under 18 U.S.C.

§ 3553(a) on the ground that his criminal history category

substantially over-represents the seriousness of his criminal

history. To the extent that defendant seeks appellate review of

the district court's denial of a downward departure, such review of

that discretionary decision is unavailable. United States v.

Meléndez-Torres, 420 F.3d 45, 50 (1st Cir. 2005).

Although the district court's refusal to grant a downward

variance on that ground is reviewable for "reasonableness," such

review is limited to the "deferential abuse-of-discretion

standard." Gall v. United States, 128 S. Ct. 586, 598 (2007).

Here, the district court carefully considered this ground for

variance and plausibly explained its conclusion that defendant's

criminal history score did not over-represent his actual criminal

history. In particular, the court noted that, although five of the

prior convictions were obtained on the same day, they were the

result of five separate offenses and that, each time, despite

having been arrested and released for the previous offense,

defendant continued to commit the same type of offense again and

again. The court also noted that defendant had reentered the

country illegally after being deported and that, even after being
Those arguments are that five of defendant's prior 3

convictions should be counted as one offense under U.S.S.G.

§ 4A1.2(a)(2), as construed in light of amendment 709 (effective

Nov. 1, 2007), and that the case should be remanded for

resentencing on the basis of "fast-track" disparity.

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arrested for the instant offenses, he was arrested in Texas with

large sums of money, indicating that he continued to engage in drug

dealing there. That explanation was procedurally and substantively

sufficient, particularly given the fact that the ultimate sentence

was within the guidelines range. Rita v. United States, 127 S. Ct.

2456, 2465, 2468 (2007).

D. Other Issues

In his pro se brief, defendant challenges his lifetime

term of supervised release on the ground that it exceeds the

statutory maximum. In making that argument, defendant relies on 18

U.S.C. § 3583(b), the general statute concerning terms of

supervised release. That reliance is misplaced. As we have

previously held, penalties for drug offenses are governed by 21

U.S.C. § 841(b), not by 18 U.S.C. § 3583(b). United States v.

Cortes-Claudio, 312 F.3d 17, 21 (1st Cir. 2002). And, under 21

U.S.C. § 841(b)(1)(A), the maximum supervised release term is life.

Id. at 22-23. Therefore, the district court did not err, plainly

or otherwise, in this regard.

The two additional arguments that defendant raised in his

pro se post-briefing letter under Rule 28(j) of the Federal Rules

of Appellate Procedure are deemed waived for failure to raise them 3
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in defendant's counseled or pro se brief. United States v. Coplin,

463 F.3d 96, 102 n.6 (1st Cir. 2006), cert. denied, 127 S. Ct. 1320

(2007). In any event, those arguments, which were not raised

below, were at least forfeited and fail to establish error, plain

or otherwise.

Accordingly, the district court's judgment is summarily

AFFIRMED. See 1st Cir. R. 27.0(c).