United States v. Tous ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                           UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                ____________________



       No. 96-2270


                                   UNITED STATES,


                                      Appellee,


                                         v.


                                 MARIANO MIER TOUS,


                                Defendant, Appellant.


                                ____________________



                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                           FOR THE DISTRICT OF PUERTO RICO


                   [Hon. Daniel R. Dominguez, U.S. District Judge]


                                ____________________


                                       Before


                               Selya, Boudin and Lynch,

                                   Circuit Judges.


                                ____________________


            Luis Rafael Rivera on brief for appellant.

       Guillermo
Gil, United States Attorney,   Nelson
Perez-Sosa, Assistant

       United States Attorney,
Jorge E. Vega-Pacheco
, Chief, Criminal Division,

       and Jose
A.
Quiles-Espinosa, Senior Litigation Counsel, on brief for

       appellee.



                                ____________________


                                    July 29, 1997

                                ____________________






                 Per Curiam
. For the reasons stated by the district court


            in its order dated September 19, 1996, we reject defendant's


            contention that the government breached the plea agreement.


            The facts in
United States
v.
Velez Carrero
, 77 F.3d 11, 11-12


            (1st Cir. 1996), are distinguishable.


                 Further, based upon the reasons stated by the district


            court in its orders dated September 19 and October 16, 1996, we


            conclude that the district court's refusal to depart downward


            is not subject to review here.


                 As to a departure for aberrant behavior, there is no


            indication that the district court misapprehended the


            applicable guidelines or its authority to depart, and we will


            not disturb its plausible interpretation of the facts regarding


            defendant's planning of and gain from the fraudulent


            transactions.  See United States v. Grandmaison, 77 F.3d 555,


            560 (1st Cir. 1996).


                 As to a departure for reduced mental capacity, the record


            shows that defendant did not request such a departure at


            sentencing, and so he may be deemed to have waived the issue.


            Our reading of the transcript of the sentencing hearing


            persuades us that the issue of such a departure was not raised


            at that time by the district court or either party. To the


            contrary, the district court only mentioned defendant's mental


            state in the context of considering the "thoughtlessness"


            factor of a departure for aberrant behavior. Defendant's




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            subsequent Fed. R. Crim. P. 35(c) motion was not an appropriate


            means of raising such a request, see United
States v.  Abreu-


            Cabrera, 64 F.3d 67, 72 (2d Cir. 1995), and so we will not


            consider it now. In all events, the case for such a departure


            seems quite weak, and it appears altogether unlikely that the


            district court, had the point been squarely raised, would have


            departed.


                 The sentence is affirmed.  See 1st Cir. Loc. R. 27.1.






































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