USCA1 Opinion
March 19, 1996 [Not For Publication]
United States Court of Appeals
For the First Circuit
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No. 95-1088
UNITED STATES OF AMERICA,
Appellee,
v.
CATALINO GONZALEZ ROBLES
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Benito I. Rodriguez Masso for appellant.
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Juan A. Pedrosa, Assistant United States Attorney, with whom
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Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa,
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Senior Litigation Counsel, and Nelson Perez-Sosa, Assistant
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United States Attorney, were on brief for appellee.
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Per Curiam. Appellant, in this prosecution for possession
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of marihuana with intent to distribute (21 U.S.C. 841(a)(1) and
18 U.S.C. 2), appeals from the court's refusal to depart
downward from the 46-month sentence recommended and accepted
pursuant to his plea agreement.
The only formal request for a downward departure was based
on the circumstances that appellant was the father of four
children, from age 3 to age 12; that his wife was a practical
nurse working with AIDS patients and earned $332.00 every two
weeks; that food has been scarce; that, having no immediate
family available, she has had to leave her children alone when
working; and that the children receive psychological and
psychiatric help on a voluntary basis.
At the sentencing hearing, the court and appellant's counsel
discussed the circumstances in United States v. Sclamo, 997 F.2d
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970 (1st Cir. 1993), a case in which we affirmed a decision of
the district court to depart downward. In that case, defendant,
though not a biological father, nevertheless was described by a
psychologist as having demonstrated over time a critical and
unique role in his relationship with a child suffering from a
clinical disorder, with a prognosis of risk of serious regression
should defendant be incarcerated. In the case at bar, the court
noted that the persuasive factors in Sclamo were not present and
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that the family's turmoil was no more than the natural
consequences of a father's imprisonment. It concluded that the
criteria for departure set forth in United States v. Rivera, 994
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F.2d 942 (1st Cir. 1993), had not been met. This conclusion,
being a refusal to exercise discretion to depart downward, is not
reviewable. United States v. Romero, 32 F.3d 641, 653 (1st Cir.
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1994).
Appellant has briefed a second issue -- that the court erred
in not considering coercion as a ground for downward departure.
Our threshold question is whether any such request was made.
This is the sequence of events. At the sentencing hearing,
after defense counsel presented her argument based on family
circumstances, the court asked if defendant wished to say
anything. He then gave the following narrative: he had been
invited by a man he thought was a "noble person" to go fishing at
St. Thomas; once there, baiting a net, he learned that the
mission was to get marihuana; he was to be paid forty or fifty
thousand dollars for his participation; when he endeavored to
leave, his associate exhibited a cellular phone and said he would
call the owner of the marihuana, who would "see that you and your
family disappear."
Appellant closed his remarks by saying that he had been hurt
irreparably, "for which reason at any time the government will
arrest him I am willing to unmask him. That is all."
Then followed three versions of what appellant had said.
The prosecutor pointed out the inconsistency between appellant's
testimony and the plea agreement, where appellant had confessed
to participating in the smuggling venture. The court thought the
story was not a denial of entering the venture but an explanation
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of how appellant became involved. It recognized that his
"reasons . . . bordered on coercion" but that this had never been
asserted as a defense. And appellant's counsel volunteered that
appellant had tried to show "that he is willing at any time that
the government needs him, to cooperate fully and like he said,
'desen mascarar' [unmask] that person that has caused some damage
to him and his family."
On this record we cannot say that the court was faced with
any request to depart downward. Reviewing for plain error, we
find none. Not only did the plea agreement contain a flat
acknowledgement of appellant's participation, without caveat or
excuse, but after the prosecutor orally summarized the events
leading up to arrest, the appellant stated his agreement and did
not accept the court's offer to add any "corrections or
modifications."
Affirmed.
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Chief Judge Torruella March 14, 1996
Judge Cyr
United States v. Gonzalez-Robles
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No. 95-1088
I enclose a draft per curiam, which I see no need to publish.
I welcome your comments and suggestions.
