USCA1 Opinion
January 13, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1492
No. 94-1493
UNITED STATES,
Appellee,
v.
SHAWN D. SILSBY,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Tina Schneider on brief for appellant.
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Jay P. McCloskey, United States Attorney, and Michael M.
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DuBose, Assistant U.S. Attorney, on brief for appellee.
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Per Curiam. Defendant-appellant Shawn D. Silsby
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pleaded guilty to two counts of an indictment charging him
with possession with intent to distribute marijuana in
violation of 21 U.S.C. 841(a)(1) and possession of a
firearm during the commission of a drug trafficking crime in
violation of 18 U.S.C. 924(c). Defendant also waived
indictment and pleaded guilty to a one-count information
charging him with possession with intent to distribute
cocaine and aiding and abetting in the commission of that
crime in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C.
2. The district court sentenced defendant to two concurrent
terms of imprisonment of 24 months on the drug convictions
and a consecutive term of imprisonment of 24 months on the
firearms conviction for a total of 48 months. Defendant
raises two issues on appeal.
1. The Right of Allocution. Prior to imposing
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sentence, a district court must "address the defendant
personally and determine if the defendant wishes to make a
statement and to present any information in mitigation of the
sentence." Fed. R. Crim. P. 32(a)(1)(C). To meet this
requirement, "the court, the prosecutor, and the defendant
must at the very least interact in a manner that shows
clearly and convincingly that the defendant knew he had a
right to speak on any subject of his choosing prior to the
imposition of sentence." United States v. de Alba Pagan, 33
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F.3d 125, 129 (1st Cir. 1994).
Defendant claims that the district court asked him
whether he had anything to say regarding the weapons charge,
but failed to so inquire regarding the drug charges. Because
defendant did not object to this alleged failure at the time,
we review for plain error. See Fed. R. Crim. P. 52(b);
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United States v. Olano, 113 S. Ct. 1770, 1776 (1993). At
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sentencing, the following interchange took place.
THE COURT: Does your client wish to be
heard by way of allocution?
THE DEFENDANT: I don't know. On the gun
charge, the only reason I had the gun is
I've always liked guns and like he says,
I lost the clip for it and I brought it
in to Willey's that day and I didn't have
it for drug purposes.
You know, I grew up, my stepfather's in
the military. I used to go out and shoot
skeet with him. And my real father, we
always went hunting. I just always
had a liking for guns. But I didn't have
the gun for, you know, drug purposes.
THE COURT: All right. Is there anything
else you want to say to the court?
THE DEFENDANT: No.
Sentencing Transcript, at 7. Defendant points out that the
discussion preceding his statement mostly was confined to the
effect of the gun charge on the guideline range. Thus, he
goes on, he "reasonably believed" that he was limited to
addressing the possession of a weapon.
We disagree. As defendant concedes, the court did
not limit its inquiry to the gun charge. In fact, the court
explicitly asked defendant after he had spoken about his
possession of the weapon whether he had anything else to add.
The cases cited by defendant are not on point. In United
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States v. Medrano, 986 F.2d 299 (9th Cir. 1993), the district
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court never addressed the defendant to see if he wished to
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speak and the government so conceded. Id. at 302. In United
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States v. Cole, 27 F.3d 996 (4th Cir. 1994), the district
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court did not ask the defendant to speak until after imposing
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sentence. Id. at 998.
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2. The Downward Departure Under the Sentencing
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Guidelines. "Upon motion of the government stating that the
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defendant has provided substantial assistance in the
investigation or prosecution of another person who has
committed an offense, the court may depart from the
guideline." U.S.S.G. 5K1.1. The government filed such a
motion and recommended a sentence in the vicinity of 48
months. Defendant argued for a 30-month sentence so that he
could attend the shock incarceration program run by the
Bureau of Prisons. To be eligible for this program
immediately after conviction, an individual must be sentenced
to a term of imprisonment of more than 12 months but not more
than 30 months. 18 U.S.C. 4046(a).
Based on the nature of the offenses, defendant's
criminal history and his acceptance of responsibility, the
court determined that the guideline range for the drug
convictions was 21 to 27 months (criminal history category of
II and base offense level of 15). The conviction for
possession of the gun carried a mandatory five year sentence
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to be served consecutively to the drug sentences. This
resulted in the possibility of a sentence of between 81 and
87 months. In choosing a term of imprisonment, the court
noted that the 48-month sentence already was a "pretty
healthy downward departure for cooperation." Sentencing
Transcript, at 6. Further, the court stated that in light of
the nature and seriousness of defendant's crimes, it could
not "in all good conscience" go to the level requested by
defendant. Id. at 10.
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"[T]he court of appeals lacks jurisdiction to hear
an appeal by a party in whose favor a departure decision
operates." United States v. McAndrews, 12 F.3d 273, 276 (1st
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Cir. 1993). In other words, a criminal defendant cannot rest
an appeal on the sentencing court's discretionary downward
departure "merely because [he] is dissatisfied with the
quantification of the court's generosity." United States v.
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Pighetti, 898 F.2d 3, 4 (1st Cir. 1990) (footnote omitted).
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The exception to this rule is where the district court's
sentencing decision results from a mistake of law.
McAndrews, 12 F.3d at 276 n.2. Thus, where the court
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erroneously believed it lacked the power to depart or
misunderstood the rules governing departure, an appeal will
lie. United States v. Mariano, 983 F.2d 1150, 1153 (1st Cir.
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1993).
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Defendant argues that the court had intended to
impose a sentence which would have allowed him to enter the
shock incarceration program immediately and that the court
was mistaken in believing that defendant would be eligible
for the program with a 48-month sentence. The record does
not support this position. First, it is clear that the
district court judge understood the implications of a 48-
month term of imprisonment.
I think the prospects for this
defendant to rehabilitate himself seem to
be fairly good, and although I think it's
a pretty close call, I'm going to
recommend to the Bureau of Prisons that
under the circumstances that
consideration be given to the defendant
for approval of a boot camp placement.
And I do that knowing that the sentence
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that I'm going to impose does not qualify
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automatically to allow the defendant to
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go into a boot camp situation, but with
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the recommendation of the court, I'm sure
that the Bureau of Prisons will at least
consider favorably the request for boot
camp placement in this case.
Sentencing Transcript, at 11 (emphasis added).1
Second, defendant's eligibility for the shock
incarceration program is not a factor the district court
could consider in determining the extent of the downward
departure. "As a basis for departing, a court may consider
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1. Defendant's assertion that only those persons with
sentences under 30 months are eligible for this program also
is misplaced. The probation department representative
testified that if defendant successfully completes 18 months
of his sentence, he will be eligible for the program.
Presentence Hearing Transcript, at 10.
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mitigating factors only to the extent that they can fairly be
said to touch upon the degree, efficacy, timeliness, and
circumstances of a defendant's cooperation." Mariano, 983
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F.2d at 1156 (footnote omitted). Therefore, we lack
jurisdiction over defendant's challenge to his sentence.
For the foregoing reasons, these appeals do not
present any substantial questions and we summarily affirm the
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judgments of the district court. See Local Rule 27.1.
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