United States v. Rivera-Perez
Opinion
USCA1 Opinion
April 28, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2354
UNITED STATES,
Appellee,
v.
MORGAN RIVERA-PEREZ,
Defendant, Appellant.
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APPEAL 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
Torruella, Selya and Stahl,
Circuit Judges.
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David W. Roman on brief for appellant.
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Guillermo Gil, United States Attorney, Jose A. Quiles-
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Espinosa, Senior Litigation Counsel, and Miguel A. Pereira,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Appellant Morgan Rivera-Perez pled
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guilty to one count of mail fraud, and aiding and abetting,
in violation of 18 U.S.C. 2, 1341. Prior to sentencing,
the government filed a motion requesting a downward departure
pursuant to U.S.S.G. 5K1.1. The district court declined to
depart downward and sentenced appellant to twenty-four months
imprisonment, the top end of the applicable guidelines
sentencing range.1 This appeal ensued.
BACKGROUND
On July 22, 1992, appellant was the subject of a four
count indictment charging him, and three co-defendants, with
engaging in a scheme to defraud $1,401,000 from an insurance
corporation. On October 8, 1992, appellant pled guilty to
Count II of the indictment pursuant to a plea agreement with
the government. The plea agreement provided that the
relevant conduct for purposes of calculating the guidelines
sentencing range would be limited to the amount of loss to
which the defendant pled guilty ($322,000.00).2 The
agreement further provided that the government would be
willing to consider future truthful cooperation by appellant
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1. The district court also imposed a supervised release term
of three years, restitution in the amount of $275,000, and a
special monetary assessment of $50.00.
2. The limitation in relevant conduct resulted in a net
total offense level under the guidelines which was three
levels below what it otherwise would have been.
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in determining whether to move the district court for a
downward departure pursuant to U.S.S.G. 5K1.1.
On August 5, 1993, appellant appeared before the
district court for the imposition of sentence. At that time,
the government filed a motion requesting a downward departure
pursuant to 5K1.1. In its motion, the government detailed
not only the assistance provided by appellant in prosecuting
the particular scheme for which he was indicted, but also his
assistance in investigating other offenses. The district
court declined to depart downward. In support of its
decision, the district court stated:
Granting the value of his past and future
cooperation, it is generally recognized that the
Court need not reward defendant for his cooperation
if such defendant has already received the benefit
of that cooperation through a plea agreement. Such
was the case here where defendant Rivera charged
with serious fraudulent conduct obtained a three
level reduction of his offense level upon agreeing
in the plea agreement that the base offense level
be calculated on the basis of the three hundred
twenty-two thousand dollars which he received, and
not on the basis of the total lose [sic] to the
victim of one million four hundred and one thousand
as a result of the scheme of which he was a
principal participant in a criminal venture of
considerable magnitude. To depart downward given
the circumstances of this case would serve only to
trivialize defendant's criminal wrongdoing, and
would defeat the deterant [sic] effect a sentence
would have on others. Accordingly, the
government's motion for downward departure is
denied.
DISCUSSION
An appeal will not lie from a district court's refusal
to depart from a properly calculated sentencing range unless
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the failure to depart stemmed from the sentencing court's
mistaken impression that it lacked the legal authority to
depart or, relatedly, from the court's misapprehension of the
rules governing departure. See, e.g., United States v.
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McAndrews, 12 F.3d 273, 276 n.2 (1st Cir. 1993); United
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States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied,
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113 S. Ct. 224 (1992). Appellant attempts to fit within the
exception by arguing that the district court's departure
decision reflected a misunderstanding of the guidelines. We
disagree.
In United States v. Mariano, 983 F.2d 1150, 1157 (1st
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Cir.
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