United States v. Santiago-Becerril

• Court: Court of Appeals for the First Circuit
• Decided: June 10, 1997
• Docket: 96-1912
• Status: Published

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                              _________________________



          No. 96-1912



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                              PEDRO ANTONIO RAMOS-ROSA,



                                Defendant, Appellant.



                              _________________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________



                              _________________________



                                        Before



                                Selya, Circuit Judge,
                                       _____________



                           Campbell, Senior Circuit Judge,
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                            and Lagueux,* District Judge.
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                              _________________________



               Ernesto Hernandez Milan on brief for appellant.
               _______________________

               Guillermo Gil, United States Attorney, Jos  A. Quiles-
               _____________                          _______________

          Espinosa, Senior Litigation Counsel, W. Stephen Muldrow and
          ________                             __________________

          Nelson P rez-Sosa, Assistant United States Attorneys, on brief
          _________________

          for appellee.



                              _________________________



                                     June 9, 1997

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          _________________

          *Of the District of Rhode Island, sitting by designation.



Per Curiam.  Defendant-appellant Pedro Antonio Ramos-
                    Per Curiam.
                    __________



          Rosa (Ramos) challenges the sentence imposed following his guilty



          plea to carjacking (count 1) and an associated firearms charge



          (count 2).  See 18 U.S.C.    2, 924(c)(1) & (3), 2119(3) (1994). 
                      ___



          Having reviewed the record carefully, we detect no error.



                    In this instance, the sentencing court figured the



          applicable guideline sentencing range (GSR) to be 324 to 405



          months on count 1.  The government moved for a substantial



          assistance departure, USSG  5K1.1, and the appellant chimed in,



          seeking even greater clemency.  The court chose a sentence of 225



          months on count 1, followed by a mandatory minimum five-year



          consecutive sentence on count 2.



                    The appellant does not contest the correctness of the



          GSR.  Nevertheless, he asserts that the court blundered in



          denying him an appropriate downward departure by (a) erroneously



          considering his past criminal history (including a juvenile



          offense for which no conviction ensued), and (b) ignoring the



          purpose of USSG  5K1.1 and the policy of the Sentencing



          Commission in respect to offenders who assist the government. 



          Additionally, he contends that the district court erred by



          considering elements of the offense which already were considered



          by the Sentencing Commission when it assigned a base offense



          level to the crime of conviction.  These claims are meritless.



                    "It is by now apodictic that a criminal defendant



          cannot ground an appeal on the sentencing court's discretionary



          decision not to depart below the GSR."  United States v. Gifford,
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17 F.3d 462, 473 (1st Cir. 1994); see also Koon v. United States,
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          116 S. Ct. 2035, 2046-47 (1996); Bruce M. Selya & Matthew R.



          Kipp, An Examination of Emerging Departure Jurisprudence Under
                ________________________________________________________



          the Federal Sentencing Guidelines, 67 Notre Dame L. Rev. 1, 13-14
          _________________________________



          (1991).  This rule applies full bore to substantial assistance



          departures.  See United States v. Vaknin, ___ F.3d ___, ___ (1st
                       ___ _____________    ______



          Cir. 1997) [No. 96-1394, slip op. at 10-11]; United States v.
                                                       _____________



          Mariano, 983 F.2d 1150, 1155-57 (1st Cir. 1993).  In both
          _______



          situations, the departure decision is unappealable as long as it



          rests on differential factfinding or on the weighing of competing



          equities; jurisdiction only attaches "when it appears that 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."  Mariano, 983 F.2d at 1153.  No such
                                 _______



          oversight occurred here.



                    The appellant labors to find a cognizable error, but he



          is unsuccessful.  The district court in fact departed downward. 



          The appellant's real dissatisfaction is that, as he sees it, the



          extent of the departure was not sufficiently generous.  In



          general, such complaints are not cognizable on appeal.  See
                                                                  ___



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



          Moreover, looking to the whole of the record, see United States
                                                        ___ _____________



          v. Rostoff, 53 F.3d 398, 407 (1st Cir. 1995), it is perfectly
             _______



          clear that the trial judge knew he could depart once the



          government invoked USSG  5K1.1.  He in fact did so, choosing, as


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was his right, to impose a sentence greater than the prosecution



          had recommended or the appellant had hoped but still below the



          nadir of the GSR.



                    The argument that the court should have gone further



          lacks force.  The transcript reveals that Judge Laffitte weighed



          the assistance that the appellant rendered (indeed, the judge



          noted that he had presided over the trial at which Ramos



          testified).  To be sure, the judge did not stop there, but a



          sentencing court is not restricted to considering only the



          defendant's substantial assistance on a section 5K1.1 motion; the



          court may (and should) consider other facts.  See Mariano, 983
                                                        ___ _______



          F.2d at 1156-57; see also 18 U.S.C.   3553.  Accordingly, we
                           ___ ____



          believe it is entirely appropriate that Judge Laffitte mulled the



          nature of the offenses and the appellant's participation in them. 



          The judge also fully considered the purpose and policies



          underlying section 5K1.1.  This is exemplified by the court's



          statement that, had Ramos not cooperated, the court "would have



          given . . . a life sentence," but refrained from imposing one



          because "cooperat[ion] with the government must also in some



          degree be rewarded as a lesson to others that might be involved



          in other criminal activities."  After pondering these



          considerations and other information in the record   all of which



          the court had a right to consult1   the court determined that,

                              
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               1The record lacks any support for the appellant's assertion

          that the court inappropriately considered prior criminal conduct

          in assessing the sentence.  The court appears merely to have

          mentioned the prior conduct when suggesting that Ramos' criminal

          history category underrepresented his prior record.  The court



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under the specific circumstances of the appellant's case, no



          greater leniency was warranted.  Such a decision was a judgment



          call, well within the sentencing court's discretion.  See Vaknin,
                                                                ___ ______



          ___ F.3d at ___ [slip op. at 13].



                    The appellant's second argument deserves very short



          shrift.  His one-paragraph reference transgresses the "settled



          appellate rule that issues adverted to in a perfunctory manner,



          unaccompanied by some effort at developed argumentation, are



          deemed waived."  United States v. Zannino, 895 F.2d 1, 17 (1st
                           _____________    _______



          Cir. 1990).  That ends the matter.



                    We need go no further.  The district court's departure



          decision is quite clearly a permissible exercise of the court's



          informed discretion, unaccompanied by any detectable error of



          law.  We will not second-guess it.


The judgment and sentence are summarily affirmed.  See
                    The judgment and sentence are summarily affirmed.
                    ________________________________________________   ___



          1st Cir. R. 27.1.


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          then explained that Ramos ordinarily would have been a candidate

          for an upward departure on this basis, but, given his

          cooperation, the court instead weighed the underrepresentation in

          considering the extent to which a downward departure was

          warranted.  We discern no error.



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