USCA1 Opinion
November 12, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2357
UNITED STATES,
Appellee,
v.
JOSE E. BONILLA-MARTINEZ,
Defendant, Appellant.
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No. 93-1517
UNITED STATES OF AMERICA,
Appellee,
v.
MARIO TORRES-MELENDEZ,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Carlos R. Noriega on brief for appellant, Jose E. Bonilla-
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Martinez.
John C. Keeney, Acting Assistant Atttorney General, Mary Lee
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Warren, Chief, and William H. Kenety, Narcotic and Dangerous Drug
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Section, on brief for appellee - No. 92-2357.
Jeffrey A. Rabin on brief for appellant, Mario Torres-Melendez.
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Charles E. Fitzwilliam, United States Attorney, John C. Keeney,
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Acting Assistant Attorney General, Mary Lee Warren, Chief, and Julie
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J. Shemitz, Attorney, Criminal Division, Narcotic and Dangerous Drug
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Section, on brief for appellee - No. 93-1517.
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Per Curiam. Appellants, Mario Torres-Melendez and Jose
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Bonilla-Martinez, were charged with having been involved in a
large scale drug conspiracy which ran from 1985 until
appellants and others were indicted in 1990. Torres-Melendez
pled guilty to conspiracy to import cocaine in violation of
21 U.S.C. 846 and was sentenced to a term of imprisonment
of 292 months. Bonilla-Martinez pled guilty to one count of
conspiracy to possess with intent to distribute cocaine,
marijuana and heroin, in violation of 21 U.S.C. 841(a) and
846. He was sentenced to 87 months imprisonment, the
sentence to be served concurrently with a sentence of 264
months imprisonment imposed upon him in another case. Both
appellants appeal their sentences.
Bonilla-Martinez
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Bonilla-Martinez' sole argument on appeal is that the
sentencing court erred when it enhanced his criminal history
2 points, pursuant to U.S.S.G. 4A1.1(b), because of a prior
sentence of imprisonment of at least sixty days. Bonilla-
Martinez contends that since the criminal conduct for which
he was sentenced in that prior case occurred after the
criminal conduct for which he was indicted in the instant
case, the sentence in the first case is not a "prior
sentence" under the guidelines.
According to the application notes, a "prior sentence"
under 4A1.1 "means a sentence imposed prior to sentencing
on the instant offense, other than a sentence for conduct
that is part of the instant offense. See 4A1.2(a). A
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sentence imposed after the defendant's commencement of the
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instant offense, but prior to sentencing on the instant
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offense, is a prior sentence if it was for conduct other than
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conduct that was part of the instant offense." U.S.S.G.
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4A1.2, comment. (n.1) (emphasis added); see U.S.S.G. 4A1.1,
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comment. (n.1) (term "prior sentence" defined at 4A1.2(a)).
Appellant does not contend that the conduct in the prior case
was part of the instant offense.
Appellant's contention that his prior sentence for
conduct unrelated to the present offense should not be
counted simply because that offense occurred after the
present offense is belied by the plain language of the
application notes and has been rejected by every circuit
court which has considered this issue. See, e.g., United
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States v. Tabaka, 982 F.2d 100, 101-02 (3d Cir. 1992); United
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States v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992); United
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States v. Hoy, 932 F.2d 1343, 1345 (9th Cir. 1991); United
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States v. Walker, 912 F.2d 1365 (11th Cir. 1990), cert.
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denied, 498 U.S. 1103 (1991); United States v. Smith, 900
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F.2d 1442, 1446-47 (10th Cir. 1990). We too find no merit in
appellant's contention.
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Torres-Melendez
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Torres-Melendez raises three claims. First, he contends
that the court erred when it increased his offense level,
pursuant to U.S.S.G. 3B1.3, because he "used a special
skill, in a manner that significantly facilitated the
commission . . . of the offense." Second, he asserts that
the court erred in its determination of his criminal history
category. Third, he contends that his counsel at sentencing
was constitutionally ineffective. Since neither of the first
two issues were raised below, we review them only for "plain
error." "Under this standard, we review only 'blockbusters:
those errors so shocking that they seriously affect the
fundamental fairness and basic integrity of the proceedings
conducted below.'" United States v. Olivo-Infante, 938 F.2d
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1406, 1412 (1st Cir. 1991) (quoting United States v. Griffin,
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818 F.2d 97, 100 (1st Cir.), cert. denied 484 U.S. 844
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(1987)).
The presentence report, adopted by the sentencing court,
found that Torres-Melendez had "utilized his knowledge and
expertise in welding to facilitate the smuggling of
controlled substances into U.S. Territory." The report
indicates that he had welded compartments onto industrial
lawn mowers into which cocaine was secreted, that he had
modified an automobile gas tank to hold cocaine, that he had
opened and then resealed the cylinder of a steamroller into
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which cocaine was packed, and that he had constructed two
steel tanks used to transport molasses which concealed
cocaine. These acts clearly facilitated the commission of
the offense for which appellant was sentenced. Appellant
contends, however, that welding is not a "special skill" as
contemplated by the guidelines.
The guidelines explain a "special skill" as "a skill not
possessed by members of the general public and usually
requiring substantial education, training or licensing.
Examples would include pilots, lawyers, doctors, accountants,
chemists, and demolition experts." U.S.S.G. 3B1.3,
comment. (n.1); see also United States v. Connell, 960 F.2d
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191, 197-98 (1st Cir. 1992). Welding of the sort performed
by appellant during the course of the conspiracy is not a
skill "possessed by members of the general public."
Appellant contends, however, that welding is not a skill
requiring "substantial education, training or licensing."
Even if we were to agree, the guidelines indicate that these
characteristics are not always required for a finding that a
defendant possesses a "special skill." See United States v.
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Spencer, Nos. 93-1041/1042, 1993 U.S. App. LEXIS 21651, at
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*14 (2d Cir. Aug. 25, 1993) ("Because the comment adds the
word 'usually,' we find no basis for limiting the increase to
only those with formal educations or professional skills.");
United States v. Hummer, 916 F.2d 186, 191 (4th Cir. 1990),
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cert. denied, 111 S. Ct. 1608 (1991) (use of term "'usually' .
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. . implies that substantial training is not a mandatory
prerequisite to making a special skills adjustment"). Hence,
we cannot say, as a matter of law, that welding is not a
"special skill" as contemplated by section 3B1.3.
As far as the application of the guideline to appellant
is concerned, we do not ordinarily consider a challenge to
the application of a particular guideline when that challenge
has not been raised in the court below. See United States v.
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Pilgrim Market Corp., 944 F.2d 14, 21 (1st Cir. 1991). The
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rationale behind this rule is, in part, that, absent
objection, "the district court had a right to believe that
defendant agreed that the facts [in the presentence report]
were true and accurate." Id., (quoting United States v. Fox
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889 F.2d 357, 359 (1st Cir. 1989). Further, the
determination of whether appellant's particular skill
justifies an increase under section 3B1.3 is "likely to
involve drawing sophisticated inferences from a web of
interconnecting facts." Connell, 960 F.2d at 198. "[W]hen a
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defendant fails to raise the issue below, we have no factual
record by which to review the application of the
guidelines."1 United States v. Saucedo, 950 F.2d 1508, 1518
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(10th Cir. 1991). In these circumstances, we find no plain
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1. The factual record we do have indicates that, although
appellant had little formal education, "through work
experience he became an . . . excellent welder."
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error in the court's increase of appellant's offense level
for possession of a "special skill." Cf. United States v.
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Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, 111 S.Ct.
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2032 (1991) ("[q]uestions of fact capable of resolution by
the district court upon proper objection at sentencing can
never constitute plain error"); Saucedo, 950 F.2d at 1508
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(same).
Torres-Melendez also contends that the court erred in
assigning him a criminal history category of III. Category
III includes defendants who have accumulated between 4 and 6
criminal history points. Appellant concedes that 2 criminal
history points were properly assigned to him pursuant to
U.S.S.G. 4A1.1(d) because he committed the instant offense
while on probation. However, he asserts that the assignment
of 3 criminal points pursuant to 4A1.1(a) was in error. He
claims that only 1 point should have been added and therefore
that his criminal history category is properly II.
According to his presentence report, appellant was
sentenced to a three year term of imprisonment for
involuntary manslaughter/vehicular homicide in June 1983.
After three months, this sentence was modified to probation.
The proper number of points to be added to appellant's
criminal history category depends on whether appellant was
incarcerated between June and September 1983, a fact not made
clear by the presentence report. If appellant were
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incarcerated, 2 points should have been added to his criminal
history category. See U.S.S.G. 4A1.1(b) ("[a]dd 2 points
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for each prior sentence of imprisonment of at least sixty
days"); id. 4A1.2, comment. n. 2 ("[t]o qualify as a
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sentence of imprisonment, the defendant must have actually
served a period of imprisonment on such sentence"). If he
were not, however, his criminal history category should have
been increased only 1 point. See id. 4A1.1(c) ("[a]dd 1
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point for each prior sentence not counted in (a) or (b)").
In any event, the government concedes that the 3 points
assigned by the presentence report was in error.2 However,
it contends that the error was harmless because 2 points
should have been added to appellant's criminal history and
this change would not affect his criminal history category.
Once again, the failure to raise the objection below is
fatal to appellant's claim. Absent an adequately developed
factual record, we are without any means of determining
whether the court's admitted error in assigning appellant 3
criminal history points was anything more than harmless
error. Thus, we are unable to say that assigning appellant a
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2. The record contains two different copies of the
presentence report, one of which assigns 3 criminal history
points for the 1983 sentence, the other 2. Both appellant
and the government assume that the court assigned 3 criminal
history points. Neither makes any mention of the other
version of the presentence report. For purposes of review,
we too assume that the court added 3 points.
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criminal history category of III was plain error.3 See
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supra.
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Finally, Torres-Melendez asserts that he received
ineffective assistance of counsel at sentencing. Since this
claim was not raised below, this court has neither a
developed factual record sufficient to sustain appellate
review nor the evaluation of the sentencing court as to the
merits of the claim. In such circumstances, this court has
repeatedly indicated that the proper vehicle for raising a
claim of ineffective counsel is through the filing of a
petition under 28 U.S.C. 2255. See United States v.
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Sanchez, 917 F.2d 607, 612 (1st Cir. 1990), cert. denied 111
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S.Ct. 1625 (1991) (citing cases).
Affirmed.
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3. Appellant's sentence of 292 months falls within the
range of 262-327 months to which he would be subject if his
criminal history category were II. Appellant has presented
no evidence, and the record reveals none, that the court
would have imposed a lesser sentence if the range were
different.
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