USCA1 Opinion
January 10, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1787
UNITED STATES,
Appellee,
v.
JOSE OMAR SANTA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Stahl and Lynch, Circuit Judges.
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Edward F. St. Onge on brief for appellant.
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Sheldon Whitehouse, United States Attorney, and Edwin J. Gale,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Defendant-appellant Jose Omar Santa
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("Santa") appeals his sentence on two grounds. First, he
objects to the conversion of money found at his apartment
into drug amounts for the purposes of calculating his base
offense level. Second, he contests the district court's
refusal to depart downward from the guideline sentence on
account of defendant's status as a deportable alien, which
makes him ineligible for assignment to low-security prisons
or half-way houses. We affirm.
I. Conversion of Cash
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The Commentary to Section 2D1.1 of the United
States Sentencing Guidelines provides that drug amounts not
specified in the counts of conviction may be considered in
determining the offense level. See Comment n. 12. To be
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included, the drug amounts must be "part of the same course
of conduct or common scheme or plan as the offense of
conviction." United States v. Gerante, 891 F.2d 364, 369
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(1st Cir. 1989). The Guidelines permit the sentencing court
to treat cash as the equivalent of an estimated quantity of
drugs in arriving at a base offense level. Comment note 12 to
2D1.1 provides, in relevant part, as follows:
Where there is no drug seizure
or the amount seized does not
reflect the scale of the
offense, the court shall
approximate the quantity of the
controlled substance. In making
this determination, the court
may consider, for example, the
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price generally obtained for
the controlled substance, . . .
On appeal, Santa argues that there is no evidence
to support the government's statement at sentencing that the
cash was wrapped in tin foil and located under the bed. He
also argues that the cash "represented the proceeds of sales
already counted." At sentencing, however, Santa did not
object to the government's account of the packaging and
location of the cash. Therefore, this objection may not be
raised for the first time on appeal. See United States v.
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Jackson, 3 F.3d 506, 511 (1st Cir. 1993). Even on appeal,
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Santa has failed to offer an alternative account of the
packaging and location of the cash. "[T]he determination
that an amount of money represents proceeds from drug
transactions that are part of the same course of conduct as
the charged offense, and therefore represents relevant
conduct attributable to the defendant, is predominantly
factual and reviewable only for clear error." Jackson, 3 F.3d
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at 510. In this case, the sentencing judge's conclusions
were not clearly erroneous. The court was free to disbelieve
Santa's claim that the cash represented savings for a trip to
Colombia. The packaging and location of the cash belied that
claim. Similarly, given the almost three-month lapse between
the previous sales of drugs and the seizure of cash, the
rejection of Santa's claim that the cash represented proceeds
from the previous sales is not clearly erroneous. "The judge
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present at the sentencing hearing is in the best position to
determine the credibility of the witnesses and the source of
the currency, . . ." Jackson, 3 F.3d at 512.
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II. Downward Departure
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Santa's second argument on appeal is that the
sentencing court erred in denying his request for a downward
departure from the guideline sentence. "It is by now
axiomatic that a criminal defendant cannot ground an appeal
on a sentencing court's discretionary decision not to depart
below the guideline sentencing range." United States v.
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Pierro, 32 F.3d 611, 619 (1st Cir. 1994), cert. denied,
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U.S. , 115 S. Ct. 919 (1995). "Appellate jurisdiction does
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attach, however, where the decision not to depart is based on
the sentencing court's assessment of its lack of authority or
power to depart." United States v. Morrison, 46 F.3d 127,
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130 (1st Cir. 1995).
Although the sentencing court indicated that it was
skeptical about its authority to depart on the basis of
Santa's status as a deportable alien, that was not the sole
ground for its failure to depart. The court clearly stated
that "even if I were permitted to make a downward departure,
I wouldn't do it on this basis." Therefore, the failure to
depart was the result of a discretionary decision that
departure was not appropriate, even if it was permitted.
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Accordingly, this court lacks jurisdiction to review the
sentencing court's departure decision.
The sentence is summarily affirmed. See Loc. R.
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27.1.
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