USCA1 Opinion
April 23, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1831
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS C. BOOTH,
Defendant, Appellant.
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No. 95-1838
UNITED STATES OF AMERICA,
Appellee,
v.
LISA BOOTH, a/k/a LISA VISCONE,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Lynch, Circuit Judge,
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Aldrich and Bownes, Senior Circuit Judges.
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Sheila A. Cook with whom Law Offices of William Maselli was on
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brief for appellant Thomas C. Booth.
E. James Burke and Bell & Burke, P.A. on brief for appellant Lisa
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Booth, a/k/a Lisa Viscone.
Margaret D. McGaughey, Assistant United States Attorney, with
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whom Jay A. McCloskey, United States Attorney, and George T. Dilworth,
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Assistant United States Attorney, were on brief for appellee.
F. Mark Terison, Assistant United States Attorney, and Jay P.
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McCloskey, United States Attorney, on brief for appellee.
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ALDRICH, Senior Circuit Judge. Thomas and Lisa
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Booth each pled guilty to one count of conspiracy to possess
and distribute in excess of 50 grams of cocaine base, in
violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A) and 846,
and now appeal their respective sentences. We affirm in both
cases.
Thomas was, concededly, a "career offender" under
4B1.1 of the Sentencing Guidelines, which prescribed an
offense level of 37. The court granted him a three level
reduction for acceptance of responsibility, under 3E1.1, for
a total adjusted offense level of 34, which yielded a
guideline sentencing range of 262-327 months. Pursuant to
5K1.1 of the Guidelines, the government recommended a 20
percent departure below the low end of the guideline range,
based on Thomas' forthright cooperation. The court agreed,
sentencing Thomas to 204 months, or 17 years, as recommended.
Thomas sought a further downward departure for
having had an allegedly minor role in the conspiracy, which
the court denied. He claims the court incorrectly ruled that
it had no authority to depart from a career offender
guideline range on the basis of a relatively lesser role in
the offense. Where the court's departure decision may have
been affected by a mistaken view of the law, it falls within
our jurisdiction to review, de novo. See United States v.
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Webster, 54 F.3d 1, 4 (1st Cir. 1995); United States v.
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Gifford, 17 F.3d 462, 473 (1st Cir. 1994).
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Thomas stakes his claim on 5H1.7, a policy
statement that "defendant's role in the offense is relevant
in determining the appropriate sentence," which refers to
Chapter Three, Part B (Role in the Offense). See, e.g.,
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U.S.S.G. 3B1.2 (allowing downward adjustment to offense
level for mitigating role).1 We garner little from this
general truism that establishes authority to depart on the
basis of a defendant's role. Especially should this be so
when it is not found in Part K of Chapter Five, where the
permitted bases for departure are delineated. Unspecified
departures are of course allowed, but only where "there
exists an aggravating or mitigating circumstance of a kind,
or to a degree, not adequately taken into consideration by
the Sentencing Commission in formulating the guidelines."
5K2.0; 18 U.S.C. 3553(b). Role-in-the-offense has been
amply considered, see generally U.S.S.G. Ch.3, and downward
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adjustment for both "minor" and "minimal" role specifically
provided for. See 3B1.2 and comment. (n.1 and 2). Thus,
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unless a defendant's role falls outside the "heartland" of
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1. Over Thomas' objection, the court ruled that he was
ineligible for a downward adjustment under 3B1.2 because the
career offender guideline allows but a single adjustment, for
acceptance of responsibility, pursuant to 3E1.1. See
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4B1.1; United States v. McCoy, 23 F.3d 216, 218 (9th Cir.
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1994). By way of a footnote, Thomas continues to register
his disagreement, but forgoes briefing the issue. We
therefore deem it waived.
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cases covered by this provision "in a way that is important
to the statutory purposes of sentencing," 5K2.0 and
comment., departure is foreclosed.2 Thomas makes no claim
that his does; nor do we believe he successfully could, given
the unequivocally stated statutory purpose to "assure that
certain career offenders receive a sentence of imprisonment
at or near the maximum term authorized [by statute]."
U.S.S.G. 4B1.1, comment. (backg'd) (citing 28 U.S.C.
994(h)) (internal quotations omitted). See United States
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v. Norflett, 922 F.2d 50, 53 (1st Cir. 1990) (Congress
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intended there to be "precious little room to maneuver" below
the statutory maximum for career offenders). Unsurprisingly,
then, we find little regard in the Guidelines for a career
offender's relative role in his latest enterprise. In
accordance with congressional directive, see 28 U.S.C.
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994(h), the career offender provision "focuses on the
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2. Thomas claims United States v. Valdez-Gonzalez, 957 F.2d
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643 (9th Cir. 1992), stands for the contrary. There,
downward adjustment under 3B1.2 was also inapplicable, not
because defendants were career offenders, but because they
were each the only participants in the offenses to which they
pled guilty. Id. at 648. In nonetheless allowing downward
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departure for minimal role, the court ruled that the
Sentencing Commission had not adequately considered relative
role in a criminal scheme extending beyond the offense at
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hand, permitting a 5K2.0 departure where each defendant was
but a "mule" in a much larger criminal operation than the
single substantive offense he committed. Id. at 650. Role
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in a scheme beyond the conspiracy charged is not at issue
here, and Valdez-Gonzalez is of questionable validity in any
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event. See United States v. Webster, 996 F.2d 209, 211 (9th
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Cir. 1993).
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recurrence of offenses rather than on the specifics of the
most recent offense." United States v. Richardson, 923 F.2d
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13, 16
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(2d Cir. 1991). Thus, even properly construed as a claim for
departure under 5K2.0, Thomas' pitch falls short.
Lisa Booth faced a 20-year mandatory minimum
sentence, based on a prior felony drug offense, under 21
U.S.C. 841(b)(1)(A). Upon the government's motion, the
court halved her sentence for cooperation and substantial
assistance. See U.S.S.G. 5K1.1. She complains, first, that
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the court took the 20-year mandatory minimum as its point of
departure, rather than the guideline range of 100 to 125
months calculated from her offense level and criminal
history. Had the court ignored the statutory minimum and
instead taken the calculated range as the guideline sentence,
its departure would have produced a sentence closer to five
years. The simple answer is that under the Guidelines, "a
statutorily required minimum sentence . . . greater than the
maximum of the applicable guideline range . . . shall be the
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guideline sentence." U.S.S.G. 5G1.1(b) (emphasis added).
The remainder of her complaint quibbles with the extent of
the court's departure, over which we lack jurisdiction. See
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United States v. Pighetti, 898 F.2d 3, 4 (1st Cir. 1990).
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Affirmed.
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