United States v. Booth

Opinion

USCA1 Opinion

April 23, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                                 ____________________



        No. 95-1831



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                   THOMAS C. BOOTH,



                                Defendant, Appellant.



                                _____________________



        No. 95-1838



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                           LISA BOOTH, a/k/a LISA VISCONE,



                                Defendant, Appellant.



                                 ____________________


APPEALS FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                                 Lynch, Circuit Judge,
                                        _____________



                      Aldrich and Bownes, Senior Circuit Judges.
                                          _____________________



                                 ____________________



____________________


Sheila A.  Cook with whom  Law Offices of  William Maselli was  on
            _______________            _______________________________

        brief for appellant Thomas C. Booth.

            E. James Burke and Bell & Burke, P.A.  on brief for appellant Lisa
            ______________     __________________

        Booth, a/k/a Lisa Viscone.

            Margaret  D. McGaughey,  Assistant  United States  Attorney,  with
            ______________________

        whom Jay A. McCloskey, United States Attorney, and George T. Dilworth,
             ________________  ______________________      __________________

        Assistant United States Attorney, were on brief for appellee.

            F. Mark  Terison, Assistant  United States  Attorney,  and Jay  P.
            ________________                                           _______

        McCloskey, United States Attorney, on brief for appellee.
        _________  ______________________



                                 ____________________


____________________



ALDRICH,  Senior  Circuit Judge.   Thomas  and Lisa
                                _____________________



            Booth  each pled guilty to one count of conspiracy to possess



            and  distribute in  excess of  50 grams  of cocaine  base, in



            violation  of 21  U.S.C.    841(a)(1), 841(b)(1)(A)  and 846,



            and now appeal their respective sentences.  We affirm in both



            cases.



                      Thomas was, concededly,  a "career offender"  under



             4B1.1  of  the Sentencing  Guidelines,  which  prescribed an



            offense  level of 37.   The court  granted him  a three level



            reduction for acceptance of responsibility, under  3E1.1, for



            a total  adjusted  offense  level  of  34,  which  yielded  a



            guideline sentencing  range of  262-327 months.   Pursuant to



             5K1.1  of the  Guidelines, the  government recommended  a 20



            percent departure below  the low end of  the guideline range,



            based on  Thomas' forthright cooperation.   The court agreed,



            sentencing Thomas to 204 months, or 17 years, as recommended.



                      Thomas  sought  a  further  downward  departure for



            having had an allegedly  minor role in the conspiracy,  which



            the court denied.  He claims the court incorrectly ruled that



            it  had  no  authority  to  depart  from  a  career  offender



            guideline range on the  basis of a relatively lesser  role in



            the offense.   Where the court's departure  decision may have



            been affected by a mistaken view of the law,  it falls within



            our  jurisdiction to review, de  novo.  See  United States v.
                                         __  ____   ___  _____________



            Webster,  54  F.3d 1,  4 (1st  Cir.  1995); United  States v.
            _______                                     ______________


-3-



Gifford, 17 F.3d 462, 473 (1st Cir. 1994).
            _______



                      Thomas  stakes  his  claim  on   5H1.7,   a  policy



            statement that  "defendant's role in the  offense is relevant



            in determining  the appropriate  sentence,"  which refers  to



            Chapter  Three, Part  B (Role  in the  Offense).   See, e.g.,
                                                               ___  ____



            U.S.S.G.   3B1.2  (allowing  downward adjustment  to  offense



            level  for mitigating  role).1   We garner  little  from this



            general truism  that establishes  authority to depart  on the



            basis  of a defendant's role.   Especially should  this be so



            when it is  not found in  Part K of  Chapter Five, where  the



            permitted  bases for  departure are delineated.   Unspecified



            departures  are  of course  allowed,  but  only where  "there



            exists an  aggravating or mitigating circumstance  of a kind,



            or to  a degree, not  adequately taken into  consideration by



            the  Sentencing Commission  in  formulating the  guidelines."



             5K2.0;  18 U.S.C.   3553(b).   Role-in-the-offense  has been



            amply considered,  see generally U.S.S.G.  Ch.3, and downward
                               ___ _________



            adjustment for both  "minor" and "minimal"  role specifically



            provided for.  See   3B1.2 and comment. (n.1  and 2).   Thus,
                           ___



            unless a  defendant's role  falls outside the  "heartland" of


____________________



            1.  Over  Thomas'  objection, the  court  ruled  that he  was

            ineligible for a downward adjustment under  3B1.2 because the

            career offender guideline allows but a single adjustment, for

            acceptance  of  responsibility,  pursuant  to   3E1.1.    See
                                                                      ___

             4B1.1;  United States v. McCoy,  23 F.3d 216,  218 (9th Cir.
                     _____________    _____

            1994).   By way of  a footnote, Thomas  continues to register

            his  disagreement,  but  forgoes  briefing  the  issue.    We

            therefore deem it waived.



                                         -4-



cases covered by this  provision "in a way that  is important



            to   the  statutory  purposes   of  sentencing,"   5K2.0  and



            comment., departure  is foreclosed.2   Thomas makes  no claim



            that his does; nor do we believe he successfully could, given



            the unequivocally  stated statutory  purpose to "assure  that



            certain career  offenders receive a sentence  of imprisonment



            at  or  near  the  maximum  term  authorized  [by  statute]."



            U.S.S.G.    4B1.1,  comment.  (backg'd)   (citing  28  U.S.C.



              994(h))  (internal quotations omitted).   See United States
                                                        ___ _____________



            v.  Norflett,  922  F.2d 50,  53  (1st  Cir. 1990)  (Congress
                ________



            intended there to be "precious little room to maneuver" below



            the statutory maximum for career offenders).  Unsurprisingly,



            then,  we find little regard  in the Guidelines  for a career



            offender's  relative  role  in  his latest  enterprise.    In



            accordance  with  congressional   directive,  see  28  U.S.C.
                                                          ___



              994(h),  the  career  offender  provision  "focuses on  the


____________________



            2.  Thomas claims United States v. Valdez-Gonzalez, 957  F.2d
                              _____________    _______________

            643  (9th Cir.  1992),  stands  for  the  contrary.    There,

            downward adjustment under   3B1.2 was also  inapplicable, not

            because defendants were  career offenders,  but because  they

            were each the only participants in the offenses to which they

            pled guilty.  Id.  at 648.  In nonetheless  allowing downward
                          ___

            departure  for  minimal  role,   the  court  ruled  that  the

            Sentencing Commission had  not adequately considered relative

            role  in a criminal  scheme extending  beyond the  offense at
                                                   ______

            hand, permitting a  5K2.0  departure where each defendant was

            but a "mule"  in a  much larger criminal  operation than  the

            single substantive offense he  committed.  Id. at 650.   Role
                                                       ___

            in a scheme  beyond the  conspiracy charged is  not at  issue

            here, and Valdez-Gonzalez is  of questionable validity in any
                      _______________

            event.   See United States v. Webster, 996 F.2d 209, 211 (9th
                     ___ _____________    _______

            Cir. 1993).



                                         -5-



recurrence of offenses  rather than on  the specifics of  the



            most  recent offense."  United States v. Richardson, 923 F.2d
                                    _____________    __________



            13, 16


-6-



(2d Cir. 1991).  Thus, even properly construed as a claim for



            departure under  5K2.0, Thomas' pitch falls short.



                      Lisa  Booth  faced   a  20-year  mandatory  minimum



            sentence, based  on a  prior  felony drug  offense, under  21



            U.S.C.    841(b)(1)(A).   Upon the  government's  motion, the



            court  halved her  sentence for  cooperation and  substantial



            assistance.  See U.S.S.G.  5K1.1.  She complains, first, that
                         ___



            the  court took the 20-year mandatory minimum as its point of



            departure, rather  than the  guideline range  of  100 to  125



            months  calculated  from  her  offense  level  and   criminal



            history.   Had the  court ignored the  statutory minimum  and



            instead taken the calculated range as the guideline sentence,



            its departure  would have produced a sentence  closer to five



            years.   The simple answer  is that under  the Guidelines, "a



            statutorily required minimum sentence . . .  greater than the



            maximum of the  applicable guideline range . . . shall be the
                                                             _____



            guideline  sentence."   U.S.S.G.  5G1.1(b)  (emphasis added).



            The remainder  of her complaint  quibbles with the  extent of



            the court's departure, over which we  lack jurisdiction.  See
                                                                      ___



            United States v. Pighetti, 898 F.2d 3, 4 (1st Cir. 1990).
            _____________    ________



                      Affirmed.
                      _________


-7-