Filed: Jul. 23, 1996
Latest Update: Feb. 22, 2020
Summary: Defendant, Appellant.base offense level shall be made.its conclusion that the adjustment was unwarranted.decision not to depart below the guideline sentencing range.United States v. Pierro, 32 F.3d 611, 619 (1st Cir.letter was never before the district court.unveil it in the court of appeals.
July 23, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1294
UNITED STATES,
Appellee,
v.
ALEJANDRO DE JESUS GRANADA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Irma R. Valldejuli on brief for appellant.
Guillermo Gil, United States Attorney, Warren Vazquez and Nelson
Perez-Sosa, Assistant United States Attorneys, and Jose A. Quiles-
Espinosa, Senior Litigation Counsel, on brief for appellee.
Per Curiam. Alejandro De Jesus Granada appeals his
sentence on two grounds. We affirm.
1. Role in the offense. Appellant argues that the
district court erred in failing to grant his request for a
two-level reduction in the offense level based upon his minor
role in the offense, pursuant to U.S.S.G. 3B1.2. The plea
agreement entered between appellant and the government
expressly provided that, beyond the adjustment for acceptance
of responsibility, "no further adjustments to the defendant's
base offense level shall be made." It might therefore be
argued that appellant waived his right to request an
adjustment for his role in the offense, but there is some
difference among the circuits on when and whether such
stipulations are binding on the district court and we have
not resolved this issue. Compare United States v. Isirov,
996 F.2d 183, 186-87 (7th Cir. 1993), with United States v.
Long, 77 F.3d 1060, 1061 (8th Cir. 1996).
In all events, Granada was convicted of importing a
specific shipment of heroin. He is the one who did the
importing and while there is some indication that someone
else furnished him with the drugs, there is almost nothing to
indicate that his role in this importation was minor. Given
that the burden was on Granada to show that he was entitled
to the downward adjustment, the district court did not err in
its conclusion that the adjustment was unwarranted.
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2. Departure Pursuant to U.S.S.G. 5K2.0.
Appellant contends that the district court erred in failing
to depart downward under U.S.S.G. 5K2.0, on account of his
substantial assistance to the government, notwithstanding
that the government did not move for a departure pursuant to
5K1.1. "It is by now axiomatic that a criminal defendant
cannot ground an appeal on a sentencing court's discretionary
decision not to depart below the guideline sentencing range."
United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994).
In his brief, appellant does not argue that the
district court misunderstood its legal authority to depart.
The transcript of the sentencing hearing does not indicate
that the court suffered from such a misunderstanding.
Therefore, this court lacks jurisdiction to review the
sentencing court's discretionary decision not to depart.
3. Pro Se Motion to Supplement Appellate Record.
Appellant filed a pro se motion with this court seeking to
supplement the record by adding a letter from a prison
psychologist. In his motion, Granada suggests that the letter
calls into question the validity of his guilty plea. The
letter was never before the district court. Nor has Granada
raised the issue of the validity of his guilty plea in
district court. "It is a bedrock rule that when a party has
not presented an argument to the district court, she may not
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unveil it in the court of appeals." United States v. Slade,
980 F.2d 27, 30 (1st Cir. 1992).
Appellant's sentence is affirmed. See Loc. R. 27.1.
Appellant's pro se motion to supplement the record on appeal
is denied.
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