
USCA1 Opinion

	




          January 13, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1492          No. 94-1493                                                UNITED STATES,                                      Appellee,                                          v.                                   SHAWN D. SILSBY,                                Defendant, Appellant.                                  __________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ___________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ___________________               Tina Schneider on brief for appellant.               ______________               Jay  P. McCloskey,  United States  Attorney, and  Michael M.               _________________                                 __________          DuBose, Assistant U.S. Attorney, on brief for appellee.          ______                                  __________________                                  __________________                      Per  Curiam.   Defendant-appellant Shawn  D. Silsby                      ___________            pleaded  guilty to two  counts of an  indictment charging him            with  possession  with  intent  to  distribute  marijuana  in            violation  of 21  U.S.C.     841(a)(1)  and possession  of  a            firearm during the commission of  a drug trafficking crime in            violation  of 18  U.S.C.    924(c).    Defendant also  waived            indictment  and pleaded  guilty  to  a one-count  information            charging  him  with  possession  with  intent  to  distribute            cocaine  and aiding  and abetting  in the commission  of that            crime in violation  of 21 U.S.C.   841(a)(1)  and 18 U.S.C.              2.   The district court sentenced defendant to two concurrent            terms of  imprisonment of 24  months on the  drug convictions            and  a consecutive term of  imprisonment of 24  months on the            firearms  conviction for  a total  of 48  months.   Defendant            raises two issues on appeal.                      1.   The Right  of Allocution.   Prior to  imposing                           ________________________            sentence,  a  district  court  must  "address  the  defendant            personally and  determine if the  defendant wishes to  make a            statement and to present any information in mitigation of the            sentence."    Fed. R.  Crim. P.  32(a)(1)(C).   To  meet this            requirement, "the  court, the  prosecutor, and  the defendant            must  at the  very  least interact  in  a manner  that  shows            clearly and  convincingly that  the defendant  knew he  had a            right  to speak on any  subject of his  choosing prior to the            imposition  of sentence."  United States v. de Alba Pagan, 33                                       _____________    _____________            F.3d 125, 129 (1st Cir. 1994).                      Defendant claims  that the district court asked him            whether he had anything to say  regarding the weapons charge,            but failed to so inquire regarding the drug charges.  Because            defendant did not object to this alleged failure at the time,            we  review for  plain error.   See  Fed. R.  Crim. P.  52(b);                                           ___            United  States v.  Olano, 113  S.Ct. 1770,  1776 (1993).   At            ______________     _____            sentencing, the following interchange took place.                      THE COURT:  Does your  client wish  to be                      heard by way of allocution?                      THE DEFENDANT:  I don't know.  On the gun                      charge, the only reason  I had the gun is                      I've always  liked guns and like he says,                      I lost the clip  for it and I brought  it                      in to Willey's that day and I didn't have                      it for drug purposes.                      You know,  I grew up, my  stepfather's in                      the military.  I used to go out and shoot                      skeet with  him.  And my  real father, we                      always went hunting.  I just always                            had a liking for guns.  But I didn't have                      the gun for, you know, drug purposes.                      THE COURT:  All right.  Is there anything                      else you want to say to the court?                      THE DEFENDANT:  No.             Sentencing Transcript, at  7.  Defendant points  out that the            discussion preceding his statement mostly was confined to the            effect of  the gun charge on  the guideline range.   Thus, he            goes  on, he  "reasonably  believed" that  he was  limited to            addressing the possession of a weapon.                      We disagree.  As  defendant concedes, the court did            not limit its inquiry to the  gun charge.  In fact, the court            explicitly  asked defendant  after  he had  spoken about  his            possession of the weapon whether he had anything else to add.            The  cases cited by  defendant are not  on point.   In United                                                                   ______                                         -3-            States v. Medrano, 986 F.2d 299 (9th Cir. 1993), the district            ______    _______            court  never addressed the defendant  to see if  he wished to                   _____            speak and the government so conceded.  Id. at 302.  In United                                                   ___             ______            States v. Cole,  27 F.3d  996 (4th Cir.  1994), the  district            ______    ____            court did not ask the defendant to speak until after imposing                                                           _____            sentence.  Id. at 998.                       ___                      2.   The  Downward Departure  Under the  Sentencing                           ______________________________________________            Guidelines.  "Upon motion of the government  stating that the            __________            defendant   has  provided   substantial  assistance   in  the            investigation  or  prosecution  of  another  person  who  has            committed  an   offense,  the  court  may   depart  from  the            guideline."  U.S.S.G.    5K1.1.  The government filed  such a            motion  and  recommended a  sentence  in the  vicinity  of 48            months.   Defendant argued for a 30-month sentence so that he            could  attend  the shock  incarceration  program  run by  the            Bureau  of  Prisons.     To  be  eligible  for  this  program            immediately after conviction, an individual must be sentenced            to a term of imprisonment of more than 12 months but not more            than 30 months.  18 U.S.C.   4046(a).                      Based on  the nature  of the  offenses, defendant's            criminal history  and his  acceptance of  responsibility, the            court  determined  that  the  guideline range  for  the  drug            convictions was 21 to 27 months (criminal history category of            II  and  base  offense level  of  15).    The conviction  for            possession of the  gun carried a mandatory five year sentence                                         -4-            to  be  served consecutively  to  the drug  sentences.   This            resulted in the possibility  of a sentence of between  81 and            87 months.   In choosing  a term of  imprisonment, the  court            noted  that  the  48-month  sentence already  was  a  "pretty            healthy  downward  departure  for  cooperation."   Sentencing            Transcript, at 6.  Further, the court stated that in light of            the nature  and seriousness  of defendant's crimes,  it could            not "in all  good conscience"  go to the  level requested  by            defendant.  Id. at 10.                        ___                      "[T]he court of appeals lacks jurisdiction to  hear            an  appeal by  a party  in whose  favor a  departure decision            operates."  United States v. McAndrews, 12 F.3d 273, 276 (1st                        _____________    _________            Cir. 1993).  In other words, a criminal defendant cannot rest            an appeal  on the  sentencing court's  discretionary downward            departure  "merely  because  [he]  is dissatisfied  with  the            quantification of the court's  generosity."  United States v.                                                         _____________            Pighetti, 898 F.2d 3, 4  (1st Cir. 1990) (footnote  omitted).            ________            The exception  to this  rule is  where  the district  court's            sentencing   decision  results   from  a   mistake   of  law.            McAndrews,  12  F.3d  at 276  n.2.    Thus,  where the  court            _________            erroneously  believed  it  lacked  the  power  to  depart  or            misunderstood the rules  governing departure, an appeal  will            lie.  United States v. Mariano, 983 F.2d 1150, 1153 (1st Cir.                  _____________    _______            1993).                                         -5-                      Defendant  argues  that the  court had  intended to            impose a sentence which  would have allowed him to  enter the            shock incarceration  program immediately and  that the  court            was mistaken  in believing  that defendant would  be eligible            for  the program with a  48-month sentence.   The record does            not  support  this position.   First,  it  is clear  that the            district  court judge  understood the  implications of  a 48-            month term of imprisonment.                        I   think   the   prospects  for   this                      defendant to rehabilitate himself seem to                      be fairly good, and although I think it's                      a  pretty   close  call,  I'm   going  to                      recommend  to the Bureau  of Prisons that                      under     the     circumstances      that                      consideration be given  to the  defendant                      for  approval of  a boot  camp placement.                      And I  do that knowing that  the sentence                      _________________________________________                      that I'm going to impose does not qualify                      _________________________________________                      automatically to allow  the defendant  to                      _________________________________________                      go into a  boot camp situation,  but with                      ______________________________                      the recommendation of the court, I'm sure                      that the  Bureau of Prisons will at least                      consider favorably the  request for  boot                      camp placement in this case.            Sentencing Transcript, at 11 (emphasis added).1                      Second,  defendant's  eligibility  for   the  shock            incarceration  program is  not  a factor  the district  court            could  consider in  determining  the extent  of the  downward            departure.  "As a  basis for departing, a court  may consider                                            ____________________            1.  Defendant's  assertion  that   only  those  persons  with            sentences under 30 months are  eligible for this program also            is   misplaced.    The  probation  department  representative            testified that if defendant  successfully completes 18 months            of his  sentence,  he  will  be  eligible  for  the  program.            Presentence Hearing Transcript, at 10.                                          -6-            mitigating factors only to the extent that they can fairly be            said  to touch  upon  the degree,  efficacy, timeliness,  and            circumstances of  a defendant's cooperation."   Mariano,  983                                                            _______            F.2d  at  1156  (footnote   omitted).    Therefore,  we  lack            jurisdiction over defendant's challenge to his sentence.                      For  the foregoing  reasons, these  appeals do  not            present any substantial questions and we summarily affirm the                                                               ______            judgments of the district court.  See Local Rule 27.1.                                               ___                                         -7-
