United States v. Soltero Lopez

• Court: Court of Appeals for the First Circuit
• Decided: December 13, 1993
• Docket: 93-1170
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1170

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 LUIS SOLTERO-LOPEZ,

                                      Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                        Torruella and Boudin, Circuit Judges.
                                              ______________
                                 ____________________

            Frank Catala Morales for appellant.
            ____________________
            Epifanio Morales,  Assistant  United  States Attorney,  with  whom
            ________________
        Guillermo Gil, United States Attorney, Jose A. Quiles Espinosa, Senior
        _____________                          _______________________
        Litigation  Counsel,  Criminal Division,  and  Jeanette Mercado  Rios,
                                                       ______________________
        Assistant United States Attorney, were on brief for appellee.

____________________

                                  December 13, 1993
                                 ____________________

BREYER, Chief Judge.  Appellant Luis Soltero  pled
                               ___________

             guilty  to  importing cocaine  (and  related charges)  under

             circumstances for  which the Sentencing Guidelines set forth

             a  sentencing  range of  approximately  20  to 25  years  in

             prison.   See  18 U.S.C.    2; 21 U.S.C.     841(a)(1), 952,
                       ___

             960, 963; U.S.S.G.    2D1.1(c) (base  offense level of  38);

             U.S.S.G.   3B1.1(c) (two level increase for supervisory role

             in  the crime); U.S.S.G.  3E1.1(a) (two level  reduction for

             acceptance   of  responsibility);  U.S.S.G.  Ch.  5,  Pt.  A

             (sentencing  table).  In light of Soltero's cooperation with

             the government,  the district  court departed  downward from

             the bottom of the range and sentenced Soltero, instead, to a

             prison term of 17 years.   Soltero appeals, arguing that the

             district  court should have  departed downward by  more than

             just three years.

                       Soltero, however, cannot avoid the legal fact that

             the sentencing statutes (insofar  as here relevant)  provide

             him with only a very narrow right to appeal.   Although they

             permit an appellate  court to set aside a  departure that is

             "unreasonable,"  see 18 U.S.C.    3742(f)(2), they  give the
                              ___

             court  this power  in the context  of other  provisions that

             permit  defendants to appeal only upward, and the government

             to appeal  only downward, departures.   To be  specific, the

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relevant  provision  permits  the  defendant  to  appeal the

             reasonableness  of  a  sentence that  "is  greater  than the

             sentence specified  in the applicable guideline range  . . .

             ." Id.   3742(a)(3).   Here, Soltero's sentence is less than
                __                                              ____

             the "sentence specified" in the guidelines, not "greater."  

                       Soltero tries to  avoid this  problem by  pointing

             out  that the relevant  statute also permits  a defendant to

             appeal  a sentence  that  "was  imposed as  a  result of  an

             incorrect  application of the sentencing guidelines."  Id.  
                                                                    __

             3742(a)(2).  We  have specifically held, however,  that this

             provision ordinarily does not give  a defendant the right to

             appeal from a court's refusal to depart from the guidelines.
                                   _______

             United States v. Tucker, 892  F.2d 8, 10-11 (1st Cir. 1989).
             _____________    ______

             See also United States v. Romolo,  937 F.2d 20, 22 (1st Cir.
             ________ _____________    ______

             1991) (citing cases).  Nor does it apply where  a court does

             depart in the defendant's favor, but does  not depart enough

             to satisfy  the defendant.   United States v.  Pighetti, 898
                                          _____________     ________

             F.2d 3, 4 (1st Cir. 1990).

                       We  use the word  "ordinarily" because the  ban on

             review is not absolute.  Rather, we have found an "incorrect

             application of the sentencing guidelines" where a sentencing

             court  has misunderstood how the guidelines -- including the

             statutes  and guidelines governing departure -- are supposed

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to  work.    Thus, we have reviewed  cases where a defendant

             alleges  that  the district  court  erroneously believed  it

             lacked the legal power to depart in the circumstances.  See,
                              _____                                  ___

             e.g., United States  v. Rivera, 994 F.2d 942,  953 (1st Cir.
             ____  _____________     ______

             1993) (remanding  case for  resentencing); United  States v.
                                                        ______________

             Amparo,  961 F.2d 288, 292  (1st Cir.) (citing cases), cert.
             ______                                                 _____

             denied, 113 S. Ct. 224 (1992).  And we are willing to assume
             ______

             that we could also review, and correct, a departure decision

             that   reflected    some   other    kind   of    fundamental

             misunderstanding.   See United  States v. Mariano,  983 F.2d
                                 ___ ______________    _______

             1150, 1157 (1st  Cir. 1993) (noting that  a sentencing court

             may  not  rely  on constitutionally  proscribed  factors  in

             deciding  to forgo  or  curtail  a  downward  departure  for

             substantial assistance).

                       That assumption, however,  does not help  Soltero,

             for the record  makes clear that the district  court did not

             misunderstand the guidelines.   Soltero says that  the court

             would  have departed  by more  than three  years had  it not

             tried to  create a kind  of sentencing parity among  him and

             his co-defendants  -- an  equalization effort  that we  have

             previously  held  cannot  provide  a  basis  for  departure.

             United States v.  Wogan, 938 F.2d 1446,  1448-49 (1st Cir.),
             _____________     _____

             cert. denied, 112 S. Ct.  441 (1991); United States v. Carr,
             ____________                          _____________    ____

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932  F.2d 67, 73  (1st Cir.), cert.  denied, 112  S. Ct. 112
                                           _____________

             (1991).  But that is not what the district court said it was

             doing.  

                       Rather, the sentencing judge said the following:
                  
                       I am  well aware  of the  cooperation of
                       the defendant.   But that is  one factor
                       the  Court  must take  into account.   I
                       must view  the whole  case, the  overall
                       cooperation and the participation of the
                       defendant  too.   And also  view him  in
                       respect  to  other   defendants  because
                       there are other  defendants here who did
                       go  to trial, who did put the government
                       through its burden of proof.   Yes, they
                       have  a right  to do  that.   But  their
                       participation in  the offense,  a person
                       like Julio Luciano  Mosquera, is minimal
                       compared to this defendant.  

                       And  that person  [Mosquera] because  of
                       the severity of  the punishment of these
                       counts will spend  a very long  stretch.
                       And  he is a  person that came  into the
                       scene  just  hours,   hours  before  the
                       arrest.   So  this  [Soltero] is  a  key
                       participant.   This is not  somebody who
                       came in at the last  moment.  I have  to
                       give  perspective  to   the  whole  case
                       because otherwise, we will be doing with
                       the Sentencing Guidelines  precisely are
                       supposed   [sic]   to  prevent.      The
                       unfairness, lack of  uniformity and more
                       sorrow.   So I  have taken  into account
                       his [Soltero's] cooperation.  But that's
                       as far as  it will take him  because his
                       cooperation cannot be seen isolated from
                       his role  in  the offense.    Which  was
                       mayor [sic]  in this case.  He was a key
                       figure   in   the    whole   conspiracy.
                       Reconsideration is denied.

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Nothing in  this statement  suggests an  explicit effort  to

             "equalize"  sentences as among defendants.  The judge simply

             spoke of the defendant's cooperation and the fact that (when

             viewed in light of his co-conspirators' conduct) his role in

             the offense was "key" and supervisory.  To take account of a

             cooperating offender's conduct,  including his  role in  the

             offense,  when deciding the  extent of a  downward departure

             seems to us perfectly reasonable.   See Mariano, 983 F.2d at
                                                 ___ _______

             1156-57.  Soltero makes  no convincing argument that  such a

             consideration somehow  reflects a basic  misunderstanding of

             the guidelines.

                       For these  reasons, the  judgment of  the district

             court is

                       Affirmed.
                       ________

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