USCA1 Opinion
NOT FOR PUBLICATION
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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1527
UNITED STATES OF AMERICA,
Appellee,
v.
OMIL ARROYO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Hill,* Senior Circuit Judge,
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and Pollak,** Senior District Judge.
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Stephen R. Kaplan, by Appointment of the Court, for appellant.
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Margaret E. Curran, Assistant United States Attorney, with whom
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Richard W. Rose, Assistant United States Attorney, and Sheldon
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Whitehouse, United States Attorney, were on brief for the United
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States.
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September 29, 1997
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*Of the Eleventh Circuit, sitting by designation.
**Of the Eastern District of Pennsylvania, sitting by designation.
Per Curiam. Appellant Omil Arroyo was convicted on
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charges of possession with intent to deliver 50 grams or more
of cocaine base and 500 grams or more of powdered cocaine, 21
U.S.C. 841(a)(1), and sentenced to 151 months in prison,
the low end of the range determined by the Sentencing
Guidelines. He challenges both the jury verdict and his
sentence, beginning with a claim that there was insufficient
evidence to support the conviction.
In reviewing a verdict for evidentiary sufficiency, we
resolve all legitimate evidentiary conflicts in favor of the
verdict. See United States v. Ruiz, 105 F.3d 1492, 1495 (1st
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Cir. 1997). Arroyo's main insufficient-evidence argument is
that there was no proof that he exercised dominion and
control over the drugs in question. However, the drugs and
related paraphernalia were found in Arroyo's apartment, some
in plain view.
Although Arroyo and a defense witness testified that two
friends also lived in his apartment, the jury was entitled to
disbelieve this testimony in light of Arroyo's inability to
identify where these friends worked or where they had lived
before moving in with him. The government's evidence was
clearly "sufficient to warrant a jury to conclude that the
defendant is guilty beyond a reasonable doubt." United
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States v. Paiva, 892 F.2d 148, 161 (1st Cir. 1989).
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Arroyo also attacks the Sentencing Guidelines' treatment
of cocaine base as 100 times more serious than an equal
amount of powdered cocaine. This Court has already rejected
an equal protection challenge to the differential. United
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States v. Singleterry, 29 F.3d 733, 740-41 (1st Cir.), cert.
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denied, 513 U.S. 1048 (1994). Here, Arroyo simply recasts
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the attack as a claim that the differential should have been
treated as a ground for a downward departure.
But a refusal to depart downward is not reviewable
unless it rests on a mistake of law, United States v.
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Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996), and Arroyo has
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not pointed to any misapprehension of authority by the
sentencing judge. Further, even if the refusal to depart
were reviewable, the use of a 100-to-1 ratio is part of the
guideline--not itself an unusual circumstance or condition
that might take the case outside the "heartland of typical
cases" envisioned by the Sentencing Guidelines. See Koon v.
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United States, 116 S. Ct. 2035, 2044 (1996).
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Finally, Arroyo argues that the district court erred in
ruling that he was not eligible for the "safety valve"
reduction provided by U.S.S.G. 2D1.1(b)(4). The district
court concluded that Arroyo had not satisfied the conditions
of this provision because he had not truthfully provided to
the government all of the information he had pertaining to
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the offenses. U.S.S.G. 5C1.2(5). Arroyo asserts that he
is innocent and thus had no information to provide.
Arroyo had the burden of convincing the district court
that he qualified for the safety valve reduction. See United
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States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996). We
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review only for clear error the district court's
determination that Arroyo was guilty and so did have
information to provide. See United States v. Miranda-
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Santiago, 96 F.3d 517, 527 (1st Cir. 1996). Since we have
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already held that the evidence was sufficient to establish
guilt beyond a reasonable doubt, obviously the district
court's determination--based on a less demanding standard and
a reversal of the burden of proof--cannot be clear error.
Affirmed.
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