USCA1 Opinion
[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
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No. 96-1506
UNITED STATES OF AMERICA,
Appellee,
v.
GLADYS LIND,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Marlene Aponte Cabrera, by Appointment of the Court, for
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appellant.
Jacabed Rodriguez Coss, Assistant United States Attorney,
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with whom Guillermo Gil, United States Attorney, and Jose A.
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Quiles Espinosa, Assistant United States Attorney, were on brief
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for appellee.
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April 3, 1997
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Per Curiam. Following a guilty plea to drug importation and
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distribution charges, appellant Gladys Lind was sentenced to the
statutorily mandated minimum term of 60 months imprisonment based
on the substantial amount of heroin involved. She challenges in
this appeal the district court's failure to grant a downward
departure in the length of her sentence. Because there is no
evidentiary or legal basis for relief from the mandatory minimum
term, we affirm.
Appellant emphasizes various factors in support of her
request for leniency: her "extraordinary" acceptance of
responsibility, her minor role as a courier and the small payment
she was to receive ($3,000), a difficult personal history that
included diminished capacity stemming from a 23-year daily heroin
habit, her efforts at drug rehabilitation, and her status as a
first-time offender.
Even were we to accept her assertion that a five-year term
is overly severe in these circumstances, we would be without
authority to ameliorate it. Neither of the two methods for
escaping a statutory minimum is applicable: the government did
not move for a departure based on substantial assistance under
U.S.S.G. 5K1.1, see 18 U.S.C. 3553(e), and the district court
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found that appellant had failed to fulfill the requirements of
the "safety valve" provision of 18 U.S.C. 3553(f) (U.S.S.G.
5C1.2). Other than in conclusory references at oral argument
that provide no basis for appellate second-guessing, appellant
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has not disputed the inapplicability of these provisions.1 The
statutory minimum thus stands as an insurmountable barrier to
appellant's effort to reduce her sentence. See, e.g., United
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States v. Rodriguez, 938 F.2d 319, 320 (1st Cir. 1991) ("[T]he
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[sentencing] guidelines do not supersede a minimum sentence
mandated by statute.")2
Moreover, even if departure were available here, we would
lack jurisdiction to review the district court's decision not to
reduce appellant's sentence. Having carefully read the
transcript of the sentencing hearing, we are confident that the
district court understood its authority to depart, but decided
against doing so in this case. See Tr. at 12 ("In the Court's
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opinion no departure is warranted in this case and the Court is
bound by the mandate of the U.S. Sentencing Guidelines.") Such
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1 Appellant's counsel seemed to suggest in argument that
appellant was given no opportunity to respond to the government's
assertion that she had not satisfied the safety valve
requirements. At the sentencing hearing, however, counsel made
no attempt to show compliance with the provisions, and
appellant's brief also includes no argument concerning 5C1.2.
The issue is therefore entirely undeveloped, and consequently not
before us.
2 At oral argument, counsel did urge us to reconsider our
precedent holding that statutory minimum terms may not be reduced
based on the discretionary guidelines departure factors.
Regardless of its substantive merit, which we do not consider,
this argument is unavailing because it was not raised below. In
the district court, appellant simply sought a departure based on
the various factors noted above; she did not suggest, and
provided no rationale for, reversing the well established rule
that departures are unavailable when a mandatory minimum term is
set by statute unless the "substantial assistance" or "safety
valve" provisions are satisfied.
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discretionary decisions are not appealable. See United States v.
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Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996).
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Affirmed.
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