
USCA1 Opinion

	




        October 28, 1996    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                   _______________        No.  95-1672                                    UNITED STATES,                                      Appellee,                                          v.                                   ZAIDA GUTIERREZ,                                Defendant, Appellant.                                _____________________                                     ERRATA SHEET            The opinion of this  Court issued on October 9, 1996 is amended as        follows:            On page 2, line 15, change "form" to "from"                           October 10, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1672                                    UNITED STATES,                                      Appellee,                                          v.                                   ZAIDA GUTIERREZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Benicio Sanchez Rivera,  Federal Public Defender, and Miguel  A.A.            ______________________                                ____________        Nogueras-Castro,  Assistant  Federal  Public Defender,  on  brief  for        _______________        appellant.            Guillermo Gil,  United States Attorney,  Jos  A.  Quiles-Espinosa,            _____________                            ________________________        Senior Litigation  Counsel, Edwin O. V zquez,  Assistant United States                                    ________________        Attorney, and Nelson P rez-Sosa,  Assistant United States Attorney, on                      _________________        brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.  Defendant pled guilty  and was sentenced to                 __________            a  seventy-month term of  imprisonment for a  violation of 21            U.S.C.   841(a)(1).   On appeal she argues that  the district            court  erred   in  refusing  to  depart   downward  from  the            guidelines  sentencing range  pursuant to  U.S.S.G.    5K1.1.            After careful  review of the  parties' briefs and  the entire            record below, we find no error.                 Contrary  to the  defendant's assertion,  the government            had  not   promised,  as  a  term  of  the  defendant's  plea            agreement,  to file a   5K1.1 motion for a downward departure            from  the  guidelines.   Although  the  motion  filed by  the            government   originally   recommended   departure   for   the            defendant's  substantial cooperation  under     5K1.1 and  18            U.S.C.   3553, the government  corrected the motion orally to            reflect its  actual intent to  request only a  departure from            the  statutory minimum sentence pursuant  to   3553.   As the            filing of a U.S.S.G.   5K1.1 motion is discretionary with the            government,  United States  v. Raineri,  42 F.3d 36,  44 (1st                         _________________________            Cir.  1994),  cert. denied,  115  S.Ct. 2286  (1995),  it was                          ____________            within the government's discretion to correct its motion from            one seeking departure from both the statutory minimum and the            guidelines to  one seeking  departure from the  statute only.            Absent  a    5K1.1  motion,  a  binding   obligation  on  the            government to file such a  motion, or a failure to  file that            is  based  on an  impermissible  motive,  the district  court                                         -2-            lacked authority to  depart below the  guideline range.   See                                                                      ___            Wade  v. United States, 504 U.S. 181, 185-86 (1992).  Because            ______________________            the  defendant could not show  the existence of  any of these            factors, the district court properly held that it was without            the  power  to depart  from  the  guideline sentencing  range            pursuant to U.S.S.G.   5K1.1.                 Affirmed.  See Loc. R. 27.1.                 ________   ___                                         -3-
