USCA1 Opinion
February 22, 1996 [NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
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No. 95-1593
UNITED STATES OF AMERICA,
Appellee,
v.
SUSAN DELVECCHIO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Stahl, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Susan K. Howards, by appointment of the court, with whom Pamela
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Harris-Daley and Launie & Howards, P.A. were on brief, for appellant.
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Margaret E. Curran, Assistant United States Attorney, with whom
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Sheldon Whitehouse, United States Attorney, and Zechariah Chafee,
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Assistant United States Attorney, were on brief, for the United
States.
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Per Curiam. Defendant Susan DelVecchio brings two
Per Curiam.
challenges to her sentence, one of which this court has no
jurisdiction to entertain, the other of which was waived.
Defendant was sentenced to 46 months imprisonment to be
followed by three years of supervised release after she
pleaded guilty to three charges of cocaine possession and
distribution.
DelVecchio's first challenge is to the district
court's failure to grant her a downward departure based on
assertedly unusual circumstances -- including her history of
depression, a suicide attempt, sexual abuse by a family
friend and physical and emotional abuse by her former
husbands. DelVecchio argues these circumstances took her
case outside of the "heartland" of cases covered by the
Sentencing Guidelines, see United States v. Rivera, 994 F.2d
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942 (1st Cir. 1993), and that the district court was not
fully aware of its ability to make a discretionary downward
departure based on these circumstances. However, it is clear
from the record that the experienced district court did
indeed understand its authority to depart downward. After
hearing defense counsel's argument regarding Rivera, the
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district court stated, "I don't see any facts in here which
would justify me to go below the guideline range. . . . I
have the authority, of course . . . ." The court concluded
that it did not "find the facts and circumstances which would
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warrant" a downward departure. It is settled law that this
court does not have jurisdiction to review the district
court's refusal to exercise its discretionary authority to
grant a downward departure. E.g., United States v. Lewis, 40
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F.3d 1325, 1345 (1st Cir. 1994).
Defendant also raises several arguments surrounding
the government's decision not to move for a downward
departure pursuant to U.S.S.G. 5K1.1 (Nov. 1994). Under
the terms of her plea agreement, the government had agreed to
consider filing such a motion if the defendant provided
substantial assistance in the "investigation and prosecution
of another person." The decision whether to file the motion,
it was agreed, was in the discretion of the government.
Because the government determined that the assistance
DelVecchio did provide was "unavailing" and not substantial,
it declined to file the motion.
DelVecchio now argues, among other points, that the
government's refusal to file the motion and its drafting of
the agreement were done in "bad faith" allegedly in violation
of law and that the district court erred in refusing to grant
a downward departure. The fatal flaw in these arguments is
that the defendant failed to raise them in the district
court, and we decline to entertain them now. See, e.g.,
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United States v. Carvell, ___ F.3d ___, ___, No. 95-1606,
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slip op. at 15 (1st Cir. Jan. 19, 1996) ("[I]ssues not raised
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below will not be heard on appeal unless there was plain
error."). Moreover, in addition to failing to raise these
arguments below, DelVecchio now points to nothing in the
record outside the plea agreement itself as even indicating
bad faith or motive on the part of the government.
Accordingly, we believe that DelVecchio has failed to
establish any error sufficiently obvious and substantial to
survive "plain error" review.
Affirmed.
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