United States v. Jiminian ( 1994 )

USCA1 Opinion

          January 24, 1994      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 93-1857

            


                                    UNITED STATES,

                                      Appellee,

                                          v.

                               BENITO FILIMON JIMINIAN,

                                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]
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                                        Before

                                 Breyer, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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               Joel Vincent on brief for appellant.
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               Jonathan R. Chapman, Assistant  United States Attorney,  and
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          Margaret D. McGaughey, Assistant United States Attorney, on brief
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          for appellee.



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                      Per  Curiam.    Defendant-appellant  Benito Filimon
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            Jiminian pled  guilty to  one count  of possession  of heroin

            with  intent to  distribute  it,  see  21  U.S.C.  841(a)(1),
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            841(b)(1)(c), 846, and  one related conspiracy count,  see 18
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            U.S.C.   2.  The district court determined that Jiminian is a

            career offender under the Sentencing Guidelines and sentenced

            him accordingly.  Jiminian  challenges his sentence, claiming

            that  he  was  improperly classified  as  a  career offender.

            Appellant  also argues  that  the  district  court  erred  in

            refusing  his request  for  a  downward  departure  from  the

            applicable guideline  range on  the basis  that his  criminal

            history  category  over-represented  the  seriousness of  his

            criminal history.  We affirm.

                                          I.

                      The district  court adjudicated  Jiminian a  career

            offender on the basis of two prior state drug convictions for

            possession   of  cocaine  with   intent  to   distribute  it.

            Appellant argues  that these convictions  could not  properly

            count as predicate offenses because the Sentencing Commission

            exceeded it statutory authority  when it designated  offenses

            under  state  drug  laws as  qualifying  offenses  for career

            offender status.   In particular, Jiminian contends  that the

            enabling  statute, 28  U.S.C.     924(h),  allows  only  drug

            convictions   obtained   under   the   federal  statutes   it

            enumerates--not  convictions  obtained  under  similar  state



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            statutes---to  count   as  predicate   offenses.     We  have

            previously  rejected this argument  and are not  persuaded to

            revisit the  issue here.   See United States v.  Beasley, No.
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            93-1391, slip op.  at 6-12 (1st Cir. December  21, 1993); see
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            also United States  v. Dyer, No. 93-1045, slip op.  at 2 (1st
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            Cir. June 18, 1993) (per curiam).

                      Appellant also argues that the district court erred

            in failing to inquire  into the facts surrounding the  latter

            of the two  state drug  convictions to  determine whether  it

            indeed  qualified   as   a  predicate   offense.     Although

            appellant's argument  is not  entirely clear,  he appears  to

            contend that if the district court had made further  inquiry,

            it would  have ascertained  that the  evidence in  this state

            case  was only  sufficient  to support  a  finding of  simple

            possession  of cocaine  for personal  use and  not  intent to

            distribute  it.1   Appellant,  however,  conceded  below that

            this offense  was a predicate offense under "a strict reading

            of the  sentencing guidelines."   Accordingly,  the issue  is

            waived on appeal.  See United  States v. Ortiz, 966 F.2d 707,
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            717  (1st  Cir. 1992)  (claims  not  raised  at the  time  of

            sentencing are waived  on appeal), cert.  denied, 113 S.  Ct.
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            1005   (1993).    We  further  note  that  since  appellant's


                                
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            1.  Pursuant  to U.S.S.G.     4B1.1, 4B1.2, a  conviction for
            possession  of   a  controlled   substance  with  intent   to
            distribute it--but  not  simple possession  of  a  controlled
            substance--is a predicate offense for career offender status.

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            conviction in the state case  at issue resulted from a guilty

            plea, he  admitted guilt to  the charged offense.  See, e.g.,
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            Acevedo-Ramos v. United States, 961 F.2d 305, 308 (1st Cir.),
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            cert. denied, 113 S. Ct. 299 (1992).2
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                                         II.

                      Appellant's remaining claimed error  is the failure

            of the district court to depart downward  from the applicable

            guideline  range.    We have  often  stated  that  a district

            court's  discretionary  decision  not  to   depart  from  the

            guidelines  is unappealable unless the decision is a "product

            of  the court's miscalculation about whether it possessed the

            authority to depart."  United States v. Amparo, 961 F.2d 288,
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            292  (1st Cir.), cert. denied, 113 S.  Ct. 224 (1992).  Here,
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            the record is clear that the district court recognized it had

            the  authority to depart  from the guidelines,  but exercised

            its  discretion  not to  do  so.    Accordingly, we  have  no

            jurisdiction to review appellant's claim.  The judgment below

            is affirmed.  See Loc. R. 27.1.
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            2.  We  also find that  appellant waived any  issue regarding
            the voluntariness of the guilty plea.  We make no  comment on
            whether the constitutionality of  the state conviction  would
            have  been open  to collateral  attack at  sentencing if  the
            issue had been raised below.

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