
USCA1 Opinion

	




          September 5, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2280                                    UNITED STATES,                                      Appellee,                                          v.                                    WILSON OCAMPO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Dana A. Curhan on brief for appellant.            ______________            Guillermo Gil,  United States Attorney,  Jose A.  Quiles-Espinosa,            _____________                            ________________________        Senior  Litigation Counsel,  and Miguel  A. Pereira,  Assistant United                                         __________________        States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.   Defendant-appellant  Wilson  Ocampo  pled                 ___________            guilty  to one count of conspiracy to distribute cocaine, see                                                                      ___            21  U.S.C.      841(a)(1),  846, and  was  sentenced  to  the            statutory mandatory minimum term of 120 months' imprisonment,            see  21  U.S.C.    841(b)(1)(A).   After  the change  of plea            ___            hearing but  before sentencing, Congress enacted  18 U.S.C.              3553(f),  which  allows certain  low-level,  non-violent drug            offenders  with  little  or  no  criminal  history  to  avoid            mandatory minimum sentences.  See United States v. Rodriguez,                                          ___ _____________    _________            1995  WL 431015  at *1 (5th  Cir. July  21, 1995).   The sole            issue raised  by this  appeal is whether  the district  court            erred in failing to  consider Ocampo's eligibility for relief            under    3553(f)  and the  related guideline  provision which            applies the statute, U.S.S.G.   5C1.2.                   Since Ocampo failed to ask the sentencing court to apply              5C1.2, the  "plain error"  standard applies.   See Fed.  R.                                                             ___            Crim.  P. 52(b);  United States  v. Olano,  113 S.  Ct. 1770,                              _____________     _____            1776-79 (1993) (discussing plain error review); United States                                                            _____________            v. Olivier-Diaz, 13 F.3d  1, 5 (1st Cir.  1993) (same).   The               ____________            120-month sentence  imposed by the district  court was within            Ocampo's  guideline range  of  108-135 months'  imprisonment.            Based on our review of the  record, however, it appears as if            the  court  may  have   been  unaware  of  the  newly-adopted            guideline provision  and mistakenly believed  that it  lacked            any source of  authority to impose  a lesser sentence  within            the  applicable  guideline  range.    Cf.  United  States  v.                                                  ___  ______________            McAndrews, 12 F.3d  273, 276 n.2 (1st Cir.  1993) (discussing            _________            circumstances   under  which   appellate  court   may  review            discretionary decision not to depart).                   Strictly  speaking,  it  is  not "plain  error"  in  the            literal  sense  for  a  district  court  to  ignore a  relief            provision where the provision's  application depends upon the            showing  of  specific  facts,  where  the  burden is  on  the            defendant to  adduce those facts, and where the defendant has            failed to do so.  But in criminal cases we  have authority to            notice  possible defects,  whether or  not evident,  to avoid            injustice;  and in this case  it is quite  possible that both            the defendant and the court were unfamiliar with the recently            adopted relief provision.   Cf. United States  v. Collins, 60                                        ___ _____________     _______            F.3d 4, 7 (1st Cir. 1995).  Under the circumstances, we think            that justice  would be  served by  vacating the sentence  and            remanding  in  order  to  permit the  defendant  to  make the            required showing, if he can.  Accordingly, we vacate Ocampo's            sentence and remand the  case so that the district  court can            decide whether the conditions of   5C1.2 are met.                 Vacated and remanded.  See Loc. R. 27.1.                   _____________________  ___                                         -3-
