USCA1 Opinion
October 28, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_______________
No. 95-1672
UNITED STATES,
Appellee,
v.
ZAIDA GUTIERREZ,
Defendant, Appellant.
_____________________
ERRATA SHEET
The opinion of this Court issued on October 9, 1996 is amended as
follows:
On page 2, line 15, change "form" to "from"
October 10, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1672
UNITED STATES,
Appellee,
v.
ZAIDA GUTIERREZ,
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, Chief Judge,
___________
Selya and Stahl, Circuit Judges.
______________
____________________
Benicio Sanchez Rivera, Federal Public Defender, and Miguel A.A.
______________________ ____________
Nogueras-Castro, Assistant Federal Public Defender, on brief for
_______________
appellant.
Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa,
_____________ ________________________
Senior Litigation Counsel, Edwin O. V zquez, Assistant United States
________________
Attorney, and Nelson P rez-Sosa, Assistant United States Attorney, on
_________________
brief for appellee.
____________________
____________________
Per Curiam. Defendant pled guilty and was sentenced to
__________
a seventy-month term of imprisonment for a violation of 21
U.S.C. 841(a)(1). On appeal she argues that the district
court erred in refusing to depart downward from the
guidelines sentencing range pursuant to U.S.S.G. 5K1.1.
After careful review of the parties' briefs and the entire
record below, we find no error.
Contrary to the defendant's assertion, the government
had not promised, as a term of the defendant's plea
agreement, to file a 5K1.1 motion for a downward departure
from the guidelines. Although the motion filed by the
government originally recommended departure for the
defendant's substantial cooperation under 5K1.1 and 18
U.S.C. 3553, the government corrected the motion orally to
reflect its actual intent to request only a departure from
the statutory minimum sentence pursuant to 3553. As the
filing of a U.S.S.G. 5K1.1 motion is discretionary with the
government, United States v. Raineri, 42 F.3d 36, 44 (1st
_________________________
Cir. 1994), cert. denied, 115 S. Ct. 2286 (1995), it was
____________
within the government's discretion to correct its motion from
one seeking departure from both the statutory minimum and the
guidelines to one seeking departure from the statute only.
Absent a 5K1.1 motion, a binding obligation on the
government to file such a motion, or a failure to file that
is based on an impermissible motive, the district court
-2-
lacked authority to depart below the guideline range. See
___
Wade v. United States, 504 U.S. 181, 185-86 (1992). Because
______________________
the defendant could not show the existence of any of these
factors, the district court properly held that it was without
the power to depart from the guideline sentencing range
pursuant to U.S.S.G. 5K1.1.
Affirmed. See Loc. R. 27.1.
________ ___
-3-
