

April 16, 1996    UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
          FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                           

No. 95-1751

        UNITED STATES OF AMERICA,

                Appellee,

                    v.

              ANGEL SANCHEZ,

          Defendant, Appellant.

                           

               ERRATA SHEET

The  opinion of  this  Court issued  on  April 8,  1996,  is
amended as follows:

Page 8, first line  of the last paragraph:   Delete "agreed"
and insert in place thereof "argued".

April 12, 1996    UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
          FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                           

No. 95-1751

        UNITED STATES OF AMERICA,

                Appellee,

                    v.

              ANGEL SANCHEZ,

          Defendant, Appellant.

                           

               ERRATA SHEET

The  opinion of  this  court issued  on  April 8,  1996,  is
amended as follows:

Page 4, heading:  Change  the second line of the heading  by
deleting "U.S.C." and inserting in place thereof "U.S.S.G."

Page 6, line 11:   Delete "Committee's" and insert  in place
thereof "Commission's".

Page  9, third paragraph:  Delete all but the first sentence
and insert in place of deleted material the following:  

Section 1B1.10  is a  policy statement relative  to the
retroactivity of amendments.   Section 1B1.10(c)  lists
those   substantive   Amendments    intended   to    be
retroactive.  The two-level  reduction was added to the
Guidelines  by Amendment  515.   This Amendment  is not
listed in Section 1B1.10(c).

Page  9, fourth paragraph, lines  3-5:  Delete the bracketed
material and insert in place thereof:  

[Section 80001(b) of the  Violent Crime Control and Law
Enforcement Act of 1994 which directs the Commission to
implement Section 80001(a) (the safety valve statute)]

      UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
          FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                               

No. 95-1751

        UNITED STATES OF AMERICA,

                Appellee,

                    v.

              ANGEL SANCHEZ,

          Defendant, Appellant.

                               

APPEAL FROM THE UNITED STATES DISTRICT COURT 

    FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]                                                                 

                               

                  Before

            Cyr, Circuit Judge,                                                    
      Bownes, Senior Circuit Judge,                                                        
        and Stahl, Circuit Judge.                                                      

                               

M.  Kristin Spath,  Attorney,  with whom  Bjorn  Lange,  Assistant                                                                  
Federal Defender, was on brief for appellant.
Jean B. Weld, Assistant United States  Attorney, with whom Paul M.                                                                              
Gagnon, United States Attorney, was on brief for appellee.              

                               

              April 8, 1996
                               

BOWNES, Senior Circuit Judge.  This is a sentencing                      BOWNES, Senior Circuit Judge.                                                  

case.   Defendant-appellant Angel  Sanchez was indicted under

21  U.S.C.    841(a)(1)  on  five  counts of  possessing  and

distributing cocaine base -"crack  cocaine."  He entered into

a plea agreement  with the government which  provided that he

would plead guilty to counts one through four; count five was

dismissed.   Prior to  signing the plea  agreement, defendant

reserved   his   right  to   challenge   at   sentencing  the

cocaine/cocaine  base sentencing  disparity.   Defendant  was

sentenced to 108 months' incarceration with a  recommendation

that  he be  placed in  a 1,000  hour drug  treatment program

while in prison.  Part of the sentence was supervised release

for  five years  after  release from  prison.   He  was  also

assessed $200.00.

Defendant raises three issues on appeal:

(1)  The  district  court  erred  in
     refusing    to   consider    at
     sentencing   expert   testimony
     proffered   by   defendant   in
     support of his "rule of lenity"
     challenge   to   the   enhanced
     statutory   penalties   in   21
     U.S.C.    841(B)(1)(b)(III) for
     "cocaine base".

(2)  The  district  court  erred  in
     failing to  consider a downward
     departure under U.S.S.G. 5K2.0.

(3)  The defendant was entitled to a
     two  level   reduction  of  the
     applicable  offense  level,  in
     order    to    implement    the
     statutory  intent  of  the  so-
     called      "safety      valve"

                   -2-                                          2

     provisions of the Violent Crime
     Control and Law Enforcement Act
     of    1994,    18   U.S.C.     
     3553(f)(1)-(5).

   The Rule of Lenity Challenge to the                          The Rule of Lenity Challenge to the                                                              
          Enhanced Penalties in                                 Enhanced Penalties in                                                       
21 U.S.C.   841(b)(1)(b)(III) For Cocaine Base.                   21 U.S.C.   841(b)(1)(b)(III) For Cocaine Base.                                                                  

This issue,  the centerpiece of  defendant's brief,

is  foreclosed by our decision in United States v. Camilo, 71                                                                     

F.3d  984 (1st Cir.  1995), which was  decided after briefing

and  oral argument in this  case.  An  identical challenge to

the  enhanced  penalties  for  crack cocaine  was  raised  in

Camilo.  Id. at 989-90.  We rejected it for two reasons:                        

First, the rule  of lenity argument fails
for essentially the same reason that this
circuit previously  rejected the argument
that scientific equivalence requires that
crack   offenders   be  given   the  same
sentences as those who traffic in cocaine
powder.  United States v. Singleterry, 29                                                           
F.3d 733, 740 (1st Cir. 1994).

. . . .

   Second, in light of recent legislative
developments   we   conclude   that   the
Sentencing Commission cannot  be said  to
have  failed in  its  statutory  duty  to
investigate the distinction between crack
and cocaine  powder.  In response  to the
Sentencing  Commission's  April 13,  1995
vote, the House of Representatives joined
the  Senate on October 18, 1995 in voting
to retain the current  mandatory sentence
for   possession    of   crack   cocaine,
maintaining disparate sentences for crack
and  powder  cocaine  possession.     See                                                               
Pub.L. No.  104-38,   1,  109 Stat.  334,
334 (1995).  And on October 30, 1995, the
President  signed  this  bill  into  law.
These  actions   preempt  the  Sentencing

                   -3-                                          3

Commission's April 13,  1995 decision  to
eliminate  the distinction  between crack
and cocaine powder from taking  effect on
November  1,  1995.    See  28  U.S.C.                                                   
994(p).

Id. at 990.               

  Failure of the District Court to Grant                        Failure of the District Court to Grant                                                              
a Downward Departure Under U.S.S.G.   5K2.0.                     a Downward Departure Under U.S.S.G.   5K2.0.                                                                 

The law  in this Circuit on  downward departures is

clear.  We  lack jurisdiction  to review an  appeal which  is

based on the discretionary  judgment of the sentencing judge.

We do,  however, have jurisdiction  to consider a  refusal to

depart  downward where  the sentencing  judge's decision  was

based  on the mistaken belief  that he was  prohibited by law

from doing so.  See United States v. Pierro, 32 F.3d 611, 619                                                       

(1st Cir. 1994), and cases cited therein.

This case,  however, does not hinge  on whether the

sentencing judge made a  discretionary decision not to depart

downward or one based  on his perception that he  was legally

constrained from doing so.

Section   5K2.0  of  the   Guidelines  provides  in

pertinent part:

Grounds for Departure (Policy Statement)                                           
Under 18 U.S.C.    3553(b) the sentencing
court  may impose a  sentence outside the
range   established  by   the  applicable
guideline, if the court finds "that there
exists   an  aggravating   or  mitigating
circumstance of  a kind, or to  a degree,
not  adequately taken  into consideration
by    the   Sentencing    Commission   in
formulating  the  guidelines that  should
result  in  the  sentence different  from

                   -4-                                          4

that described." . .  .  The  controlling
decision as to whether and to what extent
departure  is warranted can  only be made
by the courts.

Defendant's  argument at  sentencing and  before us

was  that a  downward departure  was warranted under    5K2.0

because   of  a  circumstance   not  adequately   taken  into

consideration by  the  Sentencing Commission  in  formulating

Guideline   2D1.1(c),  (the   Drug  Quantity  Table).     The

circumstance relied  on was "the findings and recommendations

of  the Commission's  congressionally mandated  study of  the

disparity between  powder and 'crack' cocaine."   Defendant's

Brief at 14.

In  rejecting  defendant's  motion  for  a downward

departure the district judge stated:

   THE  COURT:  The Court appreciates the
fact that the  Sentencing Commission,  at
the  request of Congress,  has been asked
to review the  100-to-1 ratio.   However,
all we have at this  point in time is the
Sentencing  Commission's recommendations.
And in the opinion of the Court the Court
must  live within the current law and the
current Guidelines as  written now;  that
it would be  inappropriate for the  Court
essentially  to  adopt   as  new   policy
matters     which     only     constitute
recommendations and have  not been  acted
upon by  the United States Congress.   We
do not  know what  Congress  may do  with
those recommendations;  whether they will
be rejected in toto, whether they will be
adopted  in toto, or  whether they may be
adopted  with changes.   So  it would  be
pure speculation for  the Court really to
operate  on  the  assumption  that  these
changes  are going  to become  policy and
law.

                   -5-                                          5

Defendant argues that this statement shows that the

sentencing judge believed that  he lacked the legal authority

to depart from the  guideline range and thus his  decision is

appealable as a mistake of law.  The government contends that

the  judge   exercised  his   discretion  in  not   departing

downwards,   focusing   on   the   phrase,   "it   would   be

inappropriate."

We need  not settle this argument  because it makes

no  difference.  We rule  that the circumstance  relied on by

defendant,  for  a  downward  departure,  the  findings   and

recommendations  of  the  Sentencing  Commission  relative to

changing  the sentence  disparity between  cocaine  and crack

cocaine, is  not a  ground for  departure under    5K2.0.   A

Sentencing Commission's recommendation to the Congress is not

the  kind  of  "circumstance"  that   the  provision  covers.

Moreover,  we  cannot blind  our eyes  to  the fact  that the

Congress shot down the Commission's recommendation.  In other

words,  we affirm the ruling of the district judge whether it

was discretionary or not.

Whether Defendant was Entitled to a Two-Level                    Whether Defendant was Entitled to a Two-Level                                                                 
Reduction Because of the "Safety Valve" Provisions                  Reduction Because of the "Safety Valve" Provisions                                                                    
of the Violent Crime Control Act of 1994.                      of the Violent Crime Control Act of 1994.                                                               

We   start  with   the  so-called   "safety  valve"

provisions of  the Violent Crime Control  and Law Enforcement

Act of 1994.  18 U.S.C.   3553(f) provides:

   (f)    Limitation on  applicability of                         (f)    Limitation on  applicability of
statutory  minimums  in certain  cases.--                      statutory  minimums  in certain  cases.

                   -6-                                          6

Notwithstanding  any  other provision  of
law,  in  the  case of  an  offense under
section  401,   404,   or  406   of   the
Controlled Substances Act (21 U.S.C. 841,
844, 846) or section  1010 or 1013 of the
Controlled  Substances Import  and Export
Act (21 U.S.C. 961, 963), the court shall
impose a sentence pursuant  to guidelines
promulgated   by    the   United   States
Sentencing  Commission under  section 994
of  title   28  without  regard   to  any
statutory minimum sentence, if  the court
finds at sentencing, after the Government
has been afforded the opportunity to make
a recommendation, that--

       (1)  the  defendant does  not
     have   more  than   1  criminal
     history  point,  as  determined
     under       the      sentencing
     guidelines;

        (2)  the  defendant did  not
     use   violence    or   credible
     threats of  violence or possess
     a  firearm  or other  dangerous
     weapon   (or   induce   another
     participant   to   do  so)   in
     connection with the offense;

       (3)    the  offense  did  not
     result  in   death  or  serious
     bodily injury to any person;

        (4) the defendant was not an
     organizer, leader,  manager, or
     supervisor  of  others  in  the
     offense,  as  determined  under
     the  sentencing guidelines  and
     was not engaged in a continuing
     criminal enterprise, as defined
     in 21 U.S.C. 848; and

        (5)  not later than the time
     of the  sentencing hearing, the
     defendant     has    truthfully
     provided to  the Government all
     information  and  evidence  the
     defendant  has  concerning  the
     offense  or offenses  that were

                   -7-                                          7

     part  of  the  same  course  of
     conduct or of  a common  scheme
     or plan, but the fact  that the
     defendant  has  no relevant  or
     useful  other   information  to
     provide or  that the Government
     is   already   aware   of   the
     information shall  not preclude
     a  determination  by the  court
     that the defendant has complied
     with this requirement.

In  arriving  at  the  incarceration  time  of  108

months, the judge found that  defendant met all the  criteria

of the safety valve  provisions.  Defendant was sentenced  on

July  11,  1995.    The  Sentencing  Commission  proposed  an

amendment to   2D1.1(b)  (specific offenses  characteristics)

on May 10, 1995, to become effective November 1, 1995, unless

modified  or  rejected  by  the Congress,  neither  of  which

occurred.  The proposed amendment, therefore, became law.  It

is part (4) of   2D1.1(b).  It provides:

(4)  If  the   defendant  meets  the
     criteria    set     forth    in
     subdivisions (1)-(5)  of  5C1.2
     (Limitations  on  Applicability
     of Statutory  Minimum Sentences
     in   Certain  Cases)   and  the
     offense level determined  above
     is   level   26   or   greater,                                        26
     decrease by 2 levels.1                                       2

At sentencing  the judge  refused to apply  the then-proposed

guideline because it had not yet been enacted.

                                          

1.  Subdivisions (1)-(5) of   5C1.2 state verbatim the safety
valve provisions of 18 U.S.C.   3553(f).

                   -8-                                          8

The  question before  us  is not  what the  parties

agrued and  briefed:   whether the proposed  amendment should

have  been applied.   The  issue now  is whether  the enacted

guideline should be applied retroactively.  Unfortunately for

defendant, the answer is "no."

There  is a  solid  line of  cases in  this Circuit

holding that Guideline  amendments are applied  retroactively

if they clarify a  Guideline but are not  so applied if  they

substantively  change  a Guideline.    See  United States  v.                                                                         

LaCroix,  28 F.3d 223, 227 n.4 (1st Cir. 1994); United States                                                                         

v.  Prezioso,  989 F.2d  52, 53  (1st  Cir. 1993);  Isabel v.                                                                         

United States, 980 F.2d 60, 62 (1st Cir. 1992); United States                                                                         

v. Havener, 905 F.2d 3, 4-8 (1st Cir. 1990).                      

The  Guideline  amendment  appears,   without  much

doubt,  to be substantive.  It added an additional and wholly

new part to  Guideline   2D1.1(b).   It does not  clarify the

provisions of   5C1.2;  it mandates a decrease of  two levels

if these provisions are  met and the  offense level is 26  or

greater.

In addition to  our own analysis, we note  that the

Sentencing Commission  did not consider this  amendment to be

retroactive.  Section 1B1.0 is a policy statement relative to

the retroactivity  of  amendments.   Section 1B1.10(c)  lists

those substantive Amendments intended to be retroactive.  The

                   -9-                                          9

two-level reduction  was added to the  Guideline by Amendment

515.  This Amendment is not listed in Section 1B1.1(c).

Moreover, the Amendment does not state that it is a

clarifying Amendment.  Amendment 515 states:  "this amendment

adds  a  new  subsection  to   2D1.1  to  implement  [Section

80001(b) of the Violent Crime Control and Law Enforcement Act

of  1994 which  directs the  Commission to  implement Section

80001(a) (the safety valve statute)] by providing a two-level

decrease in  offense level for cases meeting the criteria set

forth  in    5C1.2(1)-(5).     The  effective  date  of  this

amendment is November 1, 1995."

We can think of no reason for holding the Amendment

to be retroactive.

The judgment  of the district court  is affirmed in                      The judgment  of the district court  is affirmed in                                                                         

all respects.            all respects                        

                   -10-                                          10
