
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________       No. 96-2270                                   UNITED STATES,                                      Appellee,                                         v.                                 MARIANO MIER TOUS,                                Defendant, Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Daniel R. Dominguez, U.S. District Judge]                                ____________________                                       Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                ____________________            Luis Rafael Rivera on brief for appellant.       Guillermo                  Gil, United States Attorney,   Nelson                                                         Perez-Sosa, Assistant       United States Attorney,                               Jorge E. Vega-Pacheco                                                   , Chief, Criminal Division,       and Jose                 A.                     Quiles-Espinosa, Senior Litigation Counsel, on brief for       appellee.                                ____________________                                    July 29, 1997                                ____________________                 Per Curiam                          . For the reasons stated by the district court            in its order dated September 19, 1996, we reject defendant's            contention that the government breached the plea agreement.            The facts in                         United States                                      v.                                          Velez Carrero                                                      , 77 F.3d 11, 11-12            (1st Cir. 1996), are distinguishable.                  Further, based upon the reasons stated by the district            court in its orders dated September 19 and October 16, 1996, we            conclude that the district court's refusal to depart downward            is not subject to review here.                  As to a departure for aberrant behavior, there is no            indication that the district court misapprehended the            applicable guidelines or its authority to depart, and we will            not disturb its plausible interpretation of the facts regarding            defendant's planning of and gain from the fraudulent            transactions.  See United States v. Grandmaison, 77 F.3d 555,            560 (1st Cir. 1996).                  As to a departure for reduced mental capacity, the record            shows that defendant did not request such a departure at            sentencing, and so he may be deemed to have waived the issue.            Our reading of the transcript of the sentencing hearing            persuades us that the issue of such a departure was not raised            at that time by the district court or either party. To the            contrary, the district court only mentioned defendant's mental            state in the context of considering the "thoughtlessness"            factor of a departure for aberrant behavior. Defendant's                                         -2-            subsequent Fed. R. Crim. P. 35(c) motion was not an appropriate            means of raising such a request, see United                                                         States v.  Abreu-            Cabrera, 64 F.3d 67, 72 (2d Cir. 1995), and so we will not            consider it now. In all events, the case for such a departure            seems quite weak, and it appears altogether unlikely that the            district court, had the point been squarely raised, would have            departed.                 The sentence is affirmed.  See 1st Cir. Loc. R. 27.1.                                         -3-
