United States Court of Appeals

For the First Circuit

No. 05-2001

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL SAEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

 Boudin, Chief Judge,

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

Jonathan R. Saxe, Assistant Federal Public Defender, Federal

Defender Office, for appellant.

Mark E. Howard, Assistant United States Attorney, for

appellee. Peter E. Papps, Assistant United States Attorney, and

Thomas P. Colantuono, United States Attorney, on brief for

appellee.

April 6, 2006
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BOUDIN, Chief Judge. In this appeal, Miguel Saez

challenges the refusal of the federal district court in New

Hampshire to sentence him below the guideline range. The principal

basis urged by Saez for a below-guideline sentence is his claim

that another judge in the same district court gave a shorter

sentence to another defendant, Gay Finley, who had been involved in

the same criminal conduct as Saez. The history is as follows.

In 2002 or 2003, Saez met Finley in a halfway house in

Manchester, New Hampshire, after both had been released from

prison; they moved in together after completing their terms at the

halfway house and soon afterwards started using and selling heroin.

The two were arrested in November 2003 after having sold heroin on

two consecutive days to a cooperating informant for the Manchester

police department.

Finley confessed her guilt and agreed to assist the

government, but she first said (falsely) that Saez was not involved

in the drug dealing. Confronted with audio tapes of the two drug

transactions, Finley recanted her denial of Saez' involvement and

cooperated truthfully with the government. She pled guilty in June

2004 to one count of distribution of heroin, 21 U.S.C. § 841(a)(1)

(2000). On February 22, 2005, Judge Steven J. McAuliffe sentenced

her to 39 months in prison.

Finley qualified as a career offender, see United States

Sentencing Guidelines ("U.S.S.G.") § 4B1.1 (2005); this
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categorization applies to one who is convicted of a felony that is

either a crime of violence or a drug trafficking crime, and has at

least twice before been convicted for such crimes, see id. §

4B1.1(a). Her career offender status automatically placed Finley

in the highest criminal history category and made her subject to a

higher offense level than would otherwise be applicable. Id. §

4B1.1(b).

In Finley's case, her resulting guideline range (after

certain adjustments were made) was 84 to 105 months. This range

seems to reflect Finley's assistance to the government (which

recommended a six-level downward departure for substantial

assistance, U.S.S.G. § 5K1.1) and Finley's claim that her "criminal

history category substantially over-represents the seriousness of

[her] criminal history," id. § 4A1.3(b)(1). In any event, her

sentence of 39 months was expressly framed as a non-guideline

sentence under the post-Booker regime.

Miguel Saez pled guilty in March 2005, before a different

judge of the same court, Judge Paul J. Barbadoro, to one count of

aiding and abetting the distribution of heroin. 21 U.S.C. §

841(a)(1); see also 18 U.S.C. § 2 (2000). Saez also qualified as

a career offender, see U.S.S.G. § 4B1.1, and the amount of drugs

attributed to him for sentencing purposes was 0.71 grams of heroin.

Judge Barbadoro imposed on Saez a sentence of 130 months.
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Saez' sentence was at the bottom of the applicable

guideline range after the court applied a three-level downward

adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1, and

a two-level downward adjustment for rendering "substantial

assistance" to federal authorities (which defense counsel agreed at

the sentencing hearing was a fair adjustment), see id. § 5K1.1.

Saez argued for a lower, non-guideline sentence based on the small

amount of drugs in the count to which he pled and the lower

sentence imposed on Finley. Judge Barbadoro refused and Saez has

now appealed.

The framework for assessing sentences imposed after

United States v. Booker, 543 U.S. 220 (2005), has been set forth in

our en banc decision in United States v. Jiménez-Beltre, --- F.3d

---, 2006 WL 562154 (1st Cir. Mar. 9, 2006). There we concluded

that the guideline range, taking applicable departures into

account, is the starting point for analysis but that the proponent

of a higher or lower sentence is free to adduce reasons and facts

to support it. Jiménez-Beltre, 2006 WL 562154, at *3. On appeal,

the primary issues will ordinarily be whether the sentence is

reasonable and adequately explained, taking account both of the

guidelines and of other statutory factors. Id. at *3-*4.

Whether the ultimate sentence is within or without the

guideline range, an appeal urging unreasonableness is permitted,

Jiménez-Beltre, 2006 WL 562154, at *2, as are claims that the court
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erred on the law or the facts, United States v. Robinson, 433 F.3d

31, 35 (1st Cir. 2005). The government in this case argues that a

sentence within the guidelines can never be regarded as

unreasonable. We have rejected that position, Jiménez-Beltre, 2006

WL 562154, at *2, which (whatever the theoretical claims in its

favor) is contrary to explicit language in Booker. See 543 U.S. at

260-61.

Saez says that it was unreasonable to give him a 130-

month sentence while Finley, also a career offender involved in the

same drug transaction, received only 39 months from a different

judge. Relatedly, he contends that the district court "refus[ed]

to consider the sentence imposed upon Finley" when calculating his

sentence, and thus failed to consider "the need to avoid

unwarranted sentencing disparities among defendants with similar

records who have been found guilty of similar conduct," 18 U.S.C.

§ 3553(a)(6).

The first problem with Saez' argument is that the

district court did not "refus[e] to consider" Finley's sentence in

connection with Saez' sentencing, but rather determined that Saez

had not provided enough information to the court to enable it to

make a meaningful comparison of the two defendants, even if it had

been inclined to do so. "In a case in which within the same

conspiracy I'm sentencing both defendants," explained the judge at

the sentencing hearing, 
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I hope that I would at least articulate for a

defendant why one got a different sentence

from the other, but I don't even need to do

that here because I don't know anything about

that case except for a very limited amount of

information that's in [Saez' presentence

investigation report] and what you and [the

Assistant United States Attorney] ha[ve] told

me.

* * *

I would be abdicating the responsibilities I

have as the sentencing judge in this case if I

were to simply take a sentence that another

judge gave and use that as a baseline to

either move up from it or down from it. As I

said, I can't engage in that kind of analysis,

if for no other reason [than] that I simply

don't have enough information to make an

independent assessment as to whether I would

have given that defendant the same sentence, I

don't know.

"[T]he proponent of a factor that would work in the

proponent's favor has to provide the basis to support it."

Jiménez-Beltre, 2006 WL 562154, at *4 (citing United States v.

Derbes, 369 F.3d 579, 582 (1st Cir. 2004)). Judge Barbadoro had

detailed information about the drug crime to which both Saez and

Finley pled guilty in this instance, but he had little basis for

comparing Finley's criminal history with that of Saez beyond the

bare fact that both qualified as career offenders.

Saez conceded in the district court (as he does on

appeal) that his record was "more serious" than Finley's; yet he

offered no details as to how the two defendants' records differed,

saying only that giving him 51 months would account for the
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difference. Thus, one of the two main variables in sentencing--

criminal history--may well have been quite different. No valid

comparison of sentences could be made without that information.

As it happens, we know that Judge McAuliffe found that

Finley's own career offender status overstated her criminal

history. One reason, it appears, is that one of Finley's predicate

offenses under the career offender guideline was a failure to

return to a halfway house on time; although this might be treated

as a violent felony under First Circuit precedent, cf. United

States v. Winn, 364 F.3d 7, 12 (1st Cir. 2004), it is obviously a

pretty tame piece of conduct.

Conversely, Saez' record was indeed more "serious" than

Finley's. According to the presentence investigation report

("PSR"), to which Saez did not object, Saez had previously been

convicted for distribution of cocaine, first degree assault, and

multiple drug possession crimes, including one count of possession

while armed with a firearm.

As to cooperation, Finley and Saez each told lies; but

Finley admitted her guilt and sought to protect Saez. Saez, by

contrast, asked that the federal charges against him be dropped

based on Finley's false exculpation of him (although he did

eventually send a letter to Finley urging her to "come clean" to
The prosecutor regarded the letter as being to Saez' credit, 1

but it appears that the letter was sent after it had been

determined that Finley was lying and after the audio tapes of the

drug transactions had been furnished to Saez' counsel.

Numerous other federal circuits have endorsed this 2

interpretation of federal sentencing legislation. See, e.g.,

United States v. Newsom, 428 F.3d 685, 689 (7th Cir. 2005), cert.

denied, 126 S. Ct. 1455 (2006); United States v. Gallegos, 129 F.3d

1140, 1143 (10th Cir. 1997); United States v. Hall, 977 F.2d 861,

863-64 & n.4 (4th Cir. 1992); United States v. LaSalle, 948 F.2d

215, 218 (6th Cir. 1991); United States v. Joyner, 924 F.2d 454,

460-61 (2d Cir. 1991). But cf. United States v. McGee, 408 F.3d

966, 988 (7th Cir. 2005) (suggesting that the district court might

on remand take into account sentences imposed, apparently by the

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federal investigators). In the end, Finley assisted the 1

government by cooperating as to Saez; Saez, who faced both Finley's

cooperation and an audio tape showing him as a participant, had

little choice but to plead guilty--for which he received a threelevel downward adjustment for acceptance of responsibility and two

more levels as a departure under U.S.S.G. § 5K1.1.

There is a more basic difficulty with Saez' argument

which would remain even if he and Finley looked more alike than

they do. Congress did aim to reduce the unwarranted disparity in

sentencing for like crimes and criminals. See United States v.

Wogan, 938 F.2d 1446, 1449 (1st Cir.), cert. denied, 502 U.S. 969

(1991); United States v. Carr, 932 F.2d 67, 73 (1st Cir.), cert.

denied, 502 U.S. 834 (1991). But the aim was almost certainly a

national uniformity focusing upon a common standard and looking to

how most cases of the same kind were treated. See, e.g., Wogan,

938 F.2d at 1449.2
same judge, on a defendant's co-conspirators).

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Usually little is to be learned about national uniformity

by pointing to the sentence of one other defendant. Of course, if

the same judge sentences two identically situated defendants to

substantially different terms, some explanation may well be

required; uniformity aside, the basic requirement of rationality

remains. But with different judges sentencing two defendants quite

differently, there is no more reason to think that the first one

was right than the second.

The practical objections are also considerable. A single

judge sentencing two defendants for the same offense has the

information before him and knows his own reasoning. By contrast,

to make a valid comparison between defendants sentenced by

different judges is far more difficult, as this case illustrates.

Further, such a comparison opens the door to endless rummaging by

lawyers through sentences in other cases, each side finding random

examples to support a higher or lower sentence, as their clients'

interests dictate.

At the present time, the guidelines themselves are almost

certainly the best indication of ordinary practice since most

sentences are within the guidelines. See United States v.

Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). The guidelines are

not a perfect reflection of past practice, see Jiménez-Beltre, 2006

WL 562154, at *3, and other sources of information about national
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sentencing may be available. But in this context a single example

is about the weakest sort of proof of national practice that can be

imagined.

Finally, Saez says a lower sentence is reasonable in

light of the very small amount of drugs involved in the transaction

to which he pled guilty. Of course, his guideline range already

took the reduced quantity into account. Nevertheless, it might be

argued that the quantity could still be relevant--a point we have

not decided. See United States v. Morin, 403 F.3d 41, 43 (1st Cir.

2005).

As it happens, the record indicates that Saez and Finley

had been regularly dealing drugs since they left the halfway house.

In fact, as Saez' PSR makes clear, he has been involved with drugs,

including both possession and dealing, for virtually all the

periods over the last fifteen years that he has not been

incarcerated. In any event, the district judge was not obliged to

give a lower sentence because of the quantity.

Affirmed.