USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1585
UNITED STATES,
Appellee,
v.
JOSE TOMAS DISLA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
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Before
Cyr, Stahl and Lynch,
Circuit Judges.
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James E. Fitzgerald on brief for appellant.
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Sheldon Whitehouse, United States Attorney, and Stephanie S.
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Browne, Assistant United States Attorney, on brief for appellee.
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January 22, 1997
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Per Curiam. Jose Tomas Disla appeals from his sentence
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on three grounds. First, he argues that the sentencing court
erred in failing to grant him a reduction in his offense
level for his role in the offense as a "minimal" or "minor"
participant, pursuant to Section 3B1.2 of the United States
Sentencing Guidelines. Second, Disla faults the court for
failing to consider sua sponte a downward departure for
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aberrant behavior and extraordinary family circumstances.
Finally, he raises a claim of ineffective assistance of
counsel.
I. Role in the Offense
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The guidelines define a "minimal" participant as
"plainly among the least culpable of those involved in the
conduct of a group. . . . [T]he defendant's lack of
knowledge or understanding of the scope and structure of the
enterprise and of the activities of others is indicative of a
role as minimal participant." U.S.S.G. 3B1.2(a), comment.
(n.1). A "minor" participant is defined as "less culpable
than most other participants, but whose conduct could not be
described as minimal." U.S.S.G. 3B1.2(b), comment. (n.3).
At sentencing, Disla argued that his participation was
"minimal." On appeal, for the first time, he argues that
even if he did not qualify as a minimal participant, he
should have received an adjustment for "minor" participation.
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"Assessing a defendant's role in the offense is a fact-
specific task, suggesting by its very nature 'that
considerable respect be paid to the views of the nisi prius
court.' It follows, therefore, that unless a mistake of law
looms . . . [,] a sentencing court's determination of a
defendant's role will be set aside only for clear error."
United States v. Tejada-Beltran, 50 F.3d 105, 110-11 (1st
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Cir. 1995).
The district court found that Disla was an "equal
partner in the transaction. He knew the scope of the
activity. He knew it was for the purchase of a large amount
of cocaine. . . . He knew the location of where the drug was
to be taken and sold." The record supports those findings.
Disla was one of only two charged codefendants in the
conspiracy to distribute cocaine. The record contains no
evidence that there were participants other than Disla, his
co-defendant and the government agents. Under those
circumstances, the district court's assessment of Disla's
role in the offense was not clearly erroneous. Disla's
additional claims of legal error are also without merit.
II. Downward Departure
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For the first time on appeal, Disla argues that the
district court erred in failing to make a downward departure
for aberrant behavior and extraordinary family circumstances.
Disla's failure to request a downward departure on either
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ground in the district court forecloses our consideration of
the issue. See United States v. Field, 39 F.3d 15, 21 (1st
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Cir. 1994), cert. denied, __ U.S. __, 115 S. Ct. 1806 (1995).
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III. Ineffective Assistance of Counsel
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To the extent that Disla is arguing that he received
ineffective assistance of counsel because his attorney did
not move for a departure for aberrant behavior and
extraordinary family circumstances, the claim is unavailing.
The record contains scant evidence of family circumstances
that would permit a departure. See United States v. Rushby,
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936 F.2d 41, 42 (1st Cir. 1991) (holding, on record of
similar family circumstances, that departure was not
permitted). With respect to the failure to move for a
departure based upon aberrant behavior, Disla has failed to
"demonstrate that there was a reasonable probability that,
but for counsel's [alleged] errors, the result in the
proceeding would have been different." Carey v. United
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States, 50 F.3d 1097, 1101 (1st Cir. 1995).
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The sentence is summarily affirmed. See Loc. R. 27.1.
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