United States v. Lind ( 1997 )

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                                [NOT FOR PUBLICATION]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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