Project B.A.S.I.C. v. Kemp, Secretary
Case Date: 10/19/1992
Docket No: 91-1612
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[NOT FOR PUBLICATION] ____________________ No. 91-1612 UNITED STATES, Appellee, v. JOHN E. HOSMER, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge] ____________________ Before Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Cyr, Circuit Judge. ____________________ Richard J. Vita with whom Elizabeth H. Cerrato was on brief for appellant. Brien T. O'Connor, Assistant United States Attorney, with whom Wayne A. Budd, United States Attorney, was on brief for appellee. ____________________ ____________________ Per Curiam. Defendant-appellant John Hosmer appeals his sentence on two grounds: (1) that his sentence is disproportionately high compared to sentences imposed upon defendants in a prior related case by a different district court judge; (2) that the sentence violated the Ex Post Facto Clause of the Constitution because the district court considered the Sentencing Guidelines in determining its sentence, and the guidelines were not in effect at the time. 1. Disparate Sentencing Two points are to be made. One, our comparison of the sentences in this case and the prior one leads us to conclude that defendant's sentence here was not disproportionate to the sentences handed down for defendants in the other case performing similar activities; i.e., off-loading marijuana from the mother ship. Two, even if defendant's sentence was disproportionate to the sentences in the other related case, it does not make any difference. The district court judge here had no duty to reconcile the sentence of defendant with the sentences of other defendants in the related prior case. Since this was a pre-guideline case, the only check on the sentencing discretion of the judge was that the sentence not exceed the statutory limits. 2. Consideration of the Sentencing Guidelines In United States v. Twomey, 845 F.2d 1132, 1135 (1st Cir. 1988), we held that in pre-guideline cases "the judge in his discretion, [is] entitled to look at the guidelines and give them some weight if he [chooses] to do so." Id. at 1135. The sentencing judge made it explicit here that, in considering the guidelines, he knew he was not bound by them. The judgment of the district court is AFFIRMED. |