USCA1 Opinion
January 24, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1857
UNITED STATES,
Appellee,
v.
BENITO FILIMON JIMINIAN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Joel Vincent on brief for appellant.
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Jonathan R. Chapman, Assistant United States Attorney, and
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Margaret D. McGaughey, Assistant United States Attorney, on brief
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for appellee.
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Per Curiam. Defendant-appellant Benito Filimon
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Jiminian pled guilty to one count of possession of heroin
with intent to distribute it, see 21 U.S.C. 841(a)(1),
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841(b)(1)(c), 846, and one related conspiracy count, see 18
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U.S.C. 2. The district court determined that Jiminian is a
career offender under the Sentencing Guidelines and sentenced
him accordingly. Jiminian challenges his sentence, claiming
that he was improperly classified as a career offender.
Appellant also argues that the district court erred in
refusing his request for a downward departure from the
applicable guideline range on the basis that his criminal
history category over-represented the seriousness of his
criminal history. We affirm.
I.
The district court adjudicated Jiminian a career
offender on the basis of two prior state drug convictions for
possession of cocaine with intent to distribute it.
Appellant argues that these convictions could not properly
count as predicate offenses because the Sentencing Commission
exceeded it statutory authority when it designated offenses
under state drug laws as qualifying offenses for career
offender status. In particular, Jiminian contends that the
enabling statute, 28 U.S.C. 924(h), allows only drug
convictions obtained under the federal statutes it
enumerates--not convictions obtained under similar state
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statutes---to count as predicate offenses. We have
previously rejected this argument and are not persuaded to
revisit the issue here. See United States v. Beasley, No.
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93-1391, slip op. at 6-12 (1st Cir. December 21, 1993); see
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also United States v. Dyer, No. 93-1045, slip op. at 2 (1st
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Cir. June 18, 1993) (per curiam).
Appellant also argues that the district court erred
in failing to inquire into the facts surrounding the latter
of the two state drug convictions to determine whether it
indeed qualified as a predicate offense. Although
appellant's argument is not entirely clear, he appears to
contend that if the district court had made further inquiry,
it would have ascertained that the evidence in this state
case was only sufficient to support a finding of simple
possession of cocaine for personal use and not intent to
distribute it.1 Appellant, however, conceded below that
this offense was a predicate offense under "a strict reading
of the sentencing guidelines." Accordingly, the issue is
waived on appeal. See United States v. Ortiz, 966 F.2d 707,
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717 (1st Cir. 1992) (claims not raised at the time of
sentencing are waived on appeal), cert. denied, 113 S. Ct.
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1005 (1993). We further note that since appellant's
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1. Pursuant to U.S.S.G. 4B1.1, 4B1.2, a conviction for
possession of a controlled substance with intent to
distribute it--but not simple possession of a controlled
substance--is a predicate offense for career offender status.
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conviction in the state case at issue resulted from a guilty
plea, he admitted guilt to the charged offense. See, e.g.,
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Acevedo-Ramos v. United States, 961 F.2d 305, 308 (1st Cir.),
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cert. denied, 113 S. Ct. 299 (1992).2
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II.
Appellant's remaining claimed error is the failure
of the district court to depart downward from the applicable
guideline range. We have often stated that a district
court's discretionary decision not to depart from the
guidelines is unappealable unless the decision is a "product
of the court's miscalculation about whether it possessed the
authority to depart." United States v. Amparo, 961 F.2d 288,
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292 (1st Cir.), cert. denied, 113 S. Ct. 224 (1992). Here,
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the record is clear that the district court recognized it had
the authority to depart from the guidelines, but exercised
its discretion not to do so. Accordingly, we have no
jurisdiction to review appellant's claim. The judgment below
is affirmed. See Loc. R. 27.1.
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2. We also find that appellant waived any issue regarding
the voluntariness of the guilty plea. We make no comment on
whether the constitutionality of the state conviction would
have been open to collateral attack at sentencing if the
issue had been raised below.
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