Filed: Jun. 10, 1997
Latest Update: Feb. 21, 2020
Summary: Defendant, Appellant.departures. The district court in fact departed downward.United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.government invoked USSG 5K1.1.court may (and should) consider other facts.in assessing the sentence.call, well within the sentencing court's discretion.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 96-1912
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO ANTONIO RAMOS-ROSA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lagueux,* District Judge.
Ernesto Hernandez Milan on brief for appellant.
Guillermo Gil, United States Attorney, Jos A. Quiles-
Espinosa, Senior Litigation Counsel, W. Stephen Muldrow and
Nelson P rez-Sosa, Assistant United States Attorneys, on brief
for appellee.
June 9, 1997
*Of the District of Rhode Island, sitting by designation.
Per Curiam. Defendant-appellant Pedro Antonio Ramos-
Per Curiam.
Rosa (Ramos) challenges the sentence imposed following his guilty
plea to carjacking (count 1) and an associated firearms charge
(count 2). See 18 U.S.C. 2, 924(c)(1) & (3), 2119(3) (1994).
Having reviewed the record carefully, we detect no error.
In this instance, the sentencing court figured the
applicable guideline sentencing range (GSR) to be 324 to 405
months on count 1. The government moved for a substantial
assistance departure, USSG 5K1.1, and the appellant chimed in,
seeking even greater clemency. The court chose a sentence of 225
months on count 1, followed by a mandatory minimum five-year
consecutive sentence on count 2.
The appellant does not contest the correctness of the
GSR. Nevertheless, he asserts that the court blundered in
denying him an appropriate downward departure by (a) erroneously
considering his past criminal history (including a juvenile
offense for which no conviction ensued), and (b) ignoring the
purpose of USSG 5K1.1 and the policy of the Sentencing
Commission in respect to offenders who assist the government.
Additionally, he contends that the district court erred by
considering elements of the offense which already were considered
by the Sentencing Commission when it assigned a base offense
level to the crime of conviction. These claims are meritless.
"It is by now apodictic that a criminal defendant
cannot ground an appeal on the sentencing court's discretionary
decision not to depart below the GSR." United States v. Gifford,
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17 F.3d 462, 473 (1st Cir. 1994); see also Koon v. United States,
116 S. Ct. 2035, 2046-47 (1996); Bruce M. Selya & Matthew R.
Kipp, An Examination of Emerging Departure Jurisprudence Under
the Federal Sentencing Guidelines, 67 Notre Dame L. Rev. 1, 13-14
(1991). This rule applies full bore to substantial assistance
departures. See United States v. Vaknin, F.3d , (1st
Cir. 1997) [No. 96-1394, slip op. at 10-11]; United States v.
Mariano, 983 F.2d 1150, 1155-57 (1st Cir. 1993). In both
situations, the departure decision is unappealable as long as it
rests on differential factfinding or on the weighing of competing
equities; jurisdiction only attaches "when it appears that the
failure to depart stemmed from the sentencing court's mistaken
impression that it lacked the legal authority to depart or,
relatedly, from the court's misapprehension of the rules
governing departure." Mariano, 983 F.2d at 1153. No such
oversight occurred here.
The appellant labors to find a cognizable error, but he
is unsuccessful. The district court in fact departed downward.
The appellant's real dissatisfaction is that, as he sees it, the
extent of the departure was not sufficiently generous. In
general, such complaints are not cognizable on appeal. See
United States v. Pighetti, 898 F.2d 3, 4 (1st Cir. 1990).
Moreover, looking to the whole of the record, see United States
v. Rostoff, 53 F.3d 398, 407 (1st Cir. 1995), it is perfectly
clear that the trial judge knew he could depart once the
government invoked USSG 5K1.1. He in fact did so, choosing, as
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was his right, to impose a sentence greater than the prosecution
had recommended or the appellant had hoped but still below the
nadir of the GSR.
The argument that the court should have gone further
lacks force. The transcript reveals that Judge Laffitte weighed
the assistance that the appellant rendered (indeed, the judge
noted that he had presided over the trial at which Ramos
testified). To be sure, the judge did not stop there, but a
sentencing court is not restricted to considering only the
defendant's substantial assistance on a section 5K1.1 motion; the
court may (and should) consider other facts. See Mariano, 983
F.2d at 1156-57; see also 18 U.S.C. 3553. Accordingly, we
believe it is entirely appropriate that Judge Laffitte mulled the
nature of the offenses and the appellant's participation in them.
The judge also fully considered the purpose and policies
underlying section 5K1.1. This is exemplified by the court's
statement that, had Ramos not cooperated, the court "would have
given . . . a life sentence," but refrained from imposing one
because "cooperat[ion] with the government must also in some
degree be rewarded as a lesson to others that might be involved
in other criminal activities." After pondering these
considerations and other information in the record all of which
the court had a right to consult1 the court determined that,
1The record lacks any support for the appellant's assertion
that the court inappropriately considered prior criminal conduct
in assessing the sentence. The court appears merely to have
mentioned the prior conduct when suggesting that Ramos' criminal
history category underrepresented his prior record. The court
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under the specific circumstances of the appellant's case, no
greater leniency was warranted. Such a decision was a judgment
call, well within the sentencing court's discretion. See Vaknin,
F.3d at [slip op. at 13].
The appellant's second argument deserves very short
shrift. His one-paragraph reference transgresses the "settled
appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990). That ends the matter.
We need go no further. The district court's departure
decision is quite clearly a permissible exercise of the court's
informed discretion, unaccompanied by any detectable error of
law. We will not second-guess it.
The judgment and sentence are summarily affirmed. See
The judgment and sentence are summarily affirmed.
1st Cir. R. 27.1.
then explained that Ramos ordinarily would have been a candidate
for an upward departure on this basis, but, given his
cooperation, the court instead weighed the underrepresentation in
considering the extent to which a downward departure was
warranted. We discern no error.
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