USCA1 Opinion
April 28, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-2354
UNITED STATES,
Appellee,
v.
MORGAN RIVERA-PEREZ,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
___________________
___________________
Before
Torruella, Selya and Stahl,
Circuit Judges.
______________
___________________
David W. Roman on brief for appellant.
______________
Guillermo Gil, United States Attorney, Jose A. Quiles-
______________ _________________
Espinosa, Senior Litigation Counsel, and Miguel A. Pereira,
________ __________________
Assistant United States Attorney, on brief for appellee.
__________________
__________________
Per Curiam. Appellant Morgan Rivera-Perez pled
___________
guilty to one count of mail fraud, and aiding and abetting,
in violation of 18 U.S.C. 2, 1341. Prior to sentencing,
the government filed a motion requesting a downward departure
pursuant to U.S.S.G. 5K1.1. The district court declined to
depart downward and sentenced appellant to twenty-four months
imprisonment, the top end of the applicable guidelines
sentencing range.1 This appeal ensued.
BACKGROUND
On July 22, 1992, appellant was the subject of a four
count indictment charging him, and three co-defendants, with
engaging in a scheme to defraud $1,401,000 from an insurance
corporation. On October 8, 1992, appellant pled guilty to
Count II of the indictment pursuant to a plea agreement with
the government. The plea agreement provided that the
relevant conduct for purposes of calculating the guidelines
sentencing range would be limited to the amount of loss to
which the defendant pled guilty ($322,000.00).2 The
agreement further provided that the government would be
willing to consider future truthful cooperation by appellant
____________________
1. The district court also imposed a supervised release term
of three years, restitution in the amount of $275,000, and a
special monetary assessment of $50.00.
2. The limitation in relevant conduct resulted in a net
total offense level under the guidelines which was three
levels below what it otherwise would have been.
-2-
in determining whether to move the district court for a
downward departure pursuant to U.S.S.G. 5K1.1.
On August 5, 1993, appellant appeared before the
district court for the imposition of sentence. At that time,
the government filed a motion requesting a downward departure
pursuant to 5K1.1. In its motion, the government detailed
not only the assistance provided by appellant in prosecuting
the particular scheme for which he was indicted, but also his
assistance in investigating other offenses. The district
court declined to depart downward. In support of its
decision, the district court stated:
Granting the value of his past and future
cooperation, it is generally recognized that the
Court need not reward defendant for his cooperation
if such defendant has already received the benefit
of that cooperation through a plea agreement. Such
was the case here where defendant Rivera charged
with serious fraudulent conduct obtained a three
level reduction of his offense level upon agreeing
in the plea agreement that the base offense level
be calculated on the basis of the three hundred
twenty-two thousand dollars which he received, and
not on the basis of the total lose [sic] to the
victim of one million four hundred and one thousand
as a result of the scheme of which he was a
principal participant in a criminal venture of
considerable magnitude. To depart downward given
the circumstances of this case would serve only to
trivialize defendant's criminal wrongdoing, and
would defeat the deterant [sic] effect a sentence
would have on others. Accordingly, the
government's motion for downward departure is
denied.
DISCUSSION
An appeal will not lie from a district court's refusal
to depart from a properly calculated sentencing range unless
-3-
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. See, e.g., United States v.
___ ____ _____________
McAndrews, 12 F.3d 273, 276 n.2 (1st Cir. 1993); United
_________ ______
States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied,
______ ______ ____________
113 S. Ct. 224 (1992). Appellant attempts to fit within the
exception by arguing that the district court's departure
decision reflected a misunderstanding of the guidelines. We
disagree.
In United States v. Mariano, 983 F.2d 1150, 1157 (1st
_____________ _______
Cir. 1993), we stated that a district court may decide to
forgo a 5K1.1 downward departure on the basis of
considerations "not constitutionally proscribed." Contrary
to the position urged by appellant, there was nothing
improper in the district court declining to depart downward
from the applicable guideline sentencing range on the grounds
that a lesser sentence would trivialize appellant's
wrongdoing and fail to have a deterrent effect. Indeed, such
considerations are perfectly consistent with the purposes of
the sentencing system which include "the need for the
sentence imposed `to promote respect for the law,' and `to
afford adequate deterrence to criminal conduct.'" United
______
States v. Smith, 14 F.3d 662, 666 (1st Cir. 1994) (quoting
______ _____
from 18 U.S.C. 3553(a)(2)(A) & (B)).
-4-
Appellant's remaining argument boils down to the
contention that the district court erred in thinking that he
sought a double benefit--the three level reduction in
relevant conduct which resulted from his plea agreement and
an additional 5K1.1 downward departure--for the same
cooperation. Appellant argues that he did not seek a double
benefit since the reduction in relevant conduct was based on
his initial assistance to the government and the 5K1.1
motion was based on further assistance rendered. Assuming
without deciding that we have jurisdiction to review this
claimed error, we disagree that the district court's comments
at sentencing reflected any fundamental misunderstanding.
The district court duly considered the value of appellant's
"past and future" cooperation with the government.3 The
court concluded, however, that in light of the seriousness of
the crime and the substantial sentencing benefit the
appellant had already received, no additional benefit was
warranted. This decision was well within the district
court's discretion.
The judgment below is affirmed. See 1st Cir. R. 27.1.
_________ ___
____________________
3. Where, as here, the district court declined to depart
from the applicable guideline range, it was not required to
make specific findings regarding such factors as the degree,
efficacy, timeliness, and circumstances of appellant's
cooperation with the government. Accordingly, we reject
appellant's suggestion that the court's failure to do so
indicates that it did not properly consider these factors.
-5-
