United States v. Antonio Gonzalez ( 1992 )

USCA1 Opinion

        July 1, 1992            [NOT FOR PUBLICATION]






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        No. 92-1489 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                JOSE ANTONIO GONZALEZ,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Campbell, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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                                 ____________________

            Robert A. Levine on brief for appellant.
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            Richard  S.  Cohen,  United  States  Attorney,  Jonathan A.  Toof,
            __________________                              _________________
        Assistant United States Attorney, and Margaret D. McGaughey, Assistant
                                              _____________________
        United States Attorney, on brief for appellee.


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                      Per  Curiam.     Defendant  pled   guilty  to   (1)
                      ___________

            conspiracy to  possess with intent to  distribute cocaine and

            (2) use of  a person under eighteen to distribute  and to aid

            and abet the possession with intent to distribute cocaine, 21

            U.S.C.     841(a)(1),  846.   He received  a fifty-one  month

            sentence, the lowest sentence under the applicable guideline.

            On appeal, defendant  raises one issue  -- that his  asserted

            youthful appearance and potential for victimization in prison

            was a ground warranting a downward sentencing departure.

                      Defendant was  nineteen when he  committed the drug

            offenses and approximately two  months short of his twentieth

            birthday when he was  sentenced.  The prosecutor acknowledged

            at sentencing that defendant  "obviously . . . is  a youthful

            looking  person."    According  to  the  presentence  report,

            defendant is 5'10" tall and weighs 125 pounds.

                      Relying on two second circuit cases,  United States
                                                            _____________

            v. Gonazalez, 945 F.2d 525 (2d Cir. 1991) (downward departure
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            for  19-year-old  defendant who  looked 14  or  15 and  had a

            "feminine cast to his  face and a softness of  features which

            will make  him prey  to long-term criminals"  upheld); United
                                                                   ______

            States  v.  Lara, 905  F.2d  599  (2d Cir.  1990)  (upholding
            ______      ____

            downward  departure  because defendant's  youthful appearance

            (was 22, but looked 16) and bisexual orientation had rendered

            him  extremely  vulnerable  to  physical  attack  and  prison

            officials had  been  unable  to protect  him  other  than  by



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            placing  him  in solitary  confinement), defendant  argues on

            appeal, as he did below, that defendant's youthful appearance

            rendered  him  particularly  vulnerable to  victimization  in

            prison, that this alleged vulnerability was a circumstance of

            a  kind or  to  a degree  not  adequately considered  by  the

            sentencing commission,  and that  hence a  downward departure

            was warranted.

                      Defendant acknowledges our repeated  statement that

            ordinarily  a  district  court's  refusal to  depart  is  not

            appealable.  See United  States v. Hilton, 946 F.2d  955, 957
                         ___ ______________    ______

            (1st Cir. 1991)  and cases  collected therein.   He seeks  to

            come within  an exception permitting review  when the court's

            decision not  to depart is based on the mistaken view that it

            lacked the legal authority to depart.  Id.
                                                   ___

                      Our  review of  the  record convinces  us that  the

            district court found  no need to  address the legal  question

            whether  youthful appearance and  potential for victimization

            could  ever  be  proper  grounds  for  departure  because  it

            concluded  as  a  factual   matter  that  defendant  was  not

            unusually vulnerable to attack.  The court stated as follows:

                           I . . . find that [defendant] is not
                      by  virtue  of  his  appearance  uniquely
                      subject to victimization  in prison  more
                      than average 19-year-olds.

                                       .  .  .

                           I   decline   to  depart   from  the
                      guideline  range.  I'm not persuaded that
                      [defendant] . .  . is so uniquely  likely


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                      to  be  victimized   in  prison  that   a
                      downward adjustment is called for.

                      Defendant  regards  these  remarks   as  ambiguous,

            calling for  a remand, but we do not.  The district court was

            clearly  appraised  of  defendant's  legal  position  through

            defendant's citation to the  Second Circuit cases, but found,

            in the case before him, no unusual vulnerability.  We have no

            basis to disturb the factual finding.

                      The appeal is summarily dismissed pursuant to First

            Circuit Rule 27.1.


































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