
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1170                                    UNITED STATES,                                      Appellee,                                          v.                                 LUIS SOLTERO-LOPEZ,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                 ____________________            Frank Catala Morales for appellant.            ____________________            Epifanio Morales,  Assistant  United  States Attorney,  with  whom            ________________        Guillermo Gil, United States Attorney, Jose A. Quiles Espinosa, Senior        _____________                          _______________________        Litigation  Counsel,  Criminal Division,  and  Jeanette Mercado  Rios,                                                       ______________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                  December 13, 1993                                 ____________________                       BREYER, Chief Judge.  Appellant Luis Soltero  pled                               ___________             guilty  to  importing cocaine  (and  related charges)  under             circumstances for  which the Sentencing Guidelines set forth             a  sentencing  range of  approximately  20  to 25  years  in             prison.   See  18 U.S.C.    2; 21 U.S.C.     841(a)(1), 952,                       ___             960, 963; U.S.S.G.    2D1.1(c) (base  offense level of  38);             U.S.S.G.   3B1.1(c) (two level increase for supervisory role             in  the crime); U.S.S.G.  3E1.1(a) (two level  reduction for             acceptance   of  responsibility);  U.S.S.G.  Ch.  5,  Pt.  A             (sentencing  table).  In light of Soltero's cooperation with             the government,  the district  court departed  downward from             the bottom of the range and sentenced Soltero, instead, to a             prison term of 17 years.   Soltero appeals, arguing that the             district  court should have  departed downward by  more than             just three years.                       Soltero, however, cannot avoid the legal fact that             the sentencing statutes (insofar  as here relevant)  provide             him with only a very narrow right to appeal.   Although they             permit an appellate  court to set aside a  departure that is             "unreasonable,"  see 18 U.S.C.    3742(f)(2), they  give the                              ___             court  this power  in the context  of other  provisions that             permit  defendants to appeal only upward, and the government             to appeal  only downward, departures.   To be  specific, the                                         -2-                                          2             relevant  provision  permits  the  defendant  to  appeal the             reasonableness  of  a  sentence that  "is  greater  than the             sentence specified  in the applicable guideline range  . . .             ." Id.   3742(a)(3).   Here, Soltero's sentence is less than                __                                              ____             the "sentence specified" in the guidelines, not "greater."                         Soltero tries to  avoid this  problem by  pointing             out  that the relevant  statute also permits  a defendant to             appeal  a sentence  that  "was  imposed as  a  result of  an             incorrect  application of the sentencing guidelines."  Id.                                                                      __             3742(a)(2).  We  have specifically held, however,  that this             provision ordinarily does not give  a defendant the right to             appeal from a court's refusal to depart from the guidelines.                                   _______             United States v. Tucker, 892  F.2d 8, 10-11 (1st Cir. 1989).             _____________    ______             See also United States v. Romolo,  937 F.2d 20, 22 (1st Cir.             ________ _____________    ______             1991) (citing cases).  Nor does it apply where  a court does             depart in the defendant's favor, but does  not depart enough             to satisfy  the defendant.   United States v.  Pighetti, 898                                          _____________     ________             F.2d 3, 4 (1st Cir. 1990).                       We  use the word  "ordinarily" because the  ban on             review is not absolute.  Rather, we have found an "incorrect             application of the sentencing guidelines" where a sentencing             court  has misunderstood how the guidelines -- including the             statutes  and guidelines governing departure -- are supposed                                         -3-                                          3             to  work.    Thus, we have reviewed  cases where a defendant             alleges  that  the district  court  erroneously believed  it             lacked the legal power to depart in the circumstances.  See,                              _____                                  ___             e.g., United States  v. Rivera, 994 F.2d 942,  953 (1st Cir.             ____  _____________     ______             1993) (remanding  case for  resentencing); United  States v.                                                        ______________             Amparo,  961 F.2d 288, 292  (1st Cir.) (citing cases), cert.             ______                                                 _____             denied, 113 S. Ct. 224 (1992).  And we are willing to assume             ______             that we could also review, and correct, a departure decision             that   reflected    some   other    kind   of    fundamental             misunderstanding.   See United  States v. Mariano,  983 F.2d                                 ___ ______________    _______             1150, 1157 (1st  Cir. 1993) (noting that  a sentencing court             may  not  rely  on constitutionally  proscribed  factors  in             deciding  to forgo  or  curtail  a  downward  departure  for             substantial assistance).                       That assumption, however,  does not help  Soltero,             for the record  makes clear that the district  court did not             misunderstand the guidelines.   Soltero says that  the court             would  have departed  by more  than three  years had  it not             tried to  create a kind  of sentencing parity among  him and             his co-defendants  -- an  equalization effort  that we  have             previously  held  cannot  provide  a  basis  for  departure.             United States v.  Wogan, 938 F.2d 1446,  1448-49 (1st Cir.),             _____________     _____             cert. denied, 112 S. Ct.  441 (1991); United States v. Carr,             ____________                          _____________    ____                                         -4-                                          4             932  F.2d 67, 73  (1st Cir.), cert.  denied, 112  S. Ct. 112                                           _____________             (1991).  But that is not what the district court said it was             doing.                         Rather, the sentencing judge said the following:                                         I am  well aware  of the  cooperation of                       the defendant.   But that is  one factor                       the  Court  must take  into account.   I                       must view  the whole  case, the  overall                       cooperation and the participation of the                       defendant  too.   And also  view him  in                       respect  to  other   defendants  because                       there are other  defendants here who did                       go  to trial, who did put the government                       through its burden of proof.   Yes, they                       have  a right  to do  that.   But  their                       participation in  the offense,  a person                       like Julio Luciano  Mosquera, is minimal                       compared to this defendant.                         And  that person  [Mosquera] because  of                       the severity of  the punishment of these                       counts will spend  a very long  stretch.                       And  he is a  person that came  into the                       scene  just  hours,   hours  before  the                       arrest.   So  this  [Soltero] is  a  key                       participant.   This is not  somebody who                       came in at the last  moment.  I have  to                       give  perspective  to   the  whole  case                       because otherwise, we will be doing with                       the Sentencing Guidelines  precisely are                       supposed   [sic]   to  prevent.      The                       unfairness, lack of  uniformity and more                       sorrow.   So I  have taken  into account                       his [Soltero's] cooperation.  But that's                       as far as  it will take him  because his                       cooperation cannot be seen isolated from                       his role  in  the offense.    Which  was                       mayor [sic]  in this case.  He was a key                       figure   in   the    whole   conspiracy.                       Reconsideration is denied.                                         -5-                                          5             Nothing in  this statement  suggests an  explicit effort  to             "equalize"  sentences as among defendants.  The judge simply             spoke of the defendant's cooperation and the fact that (when             viewed in light of his co-conspirators' conduct) his role in             the offense was "key" and supervisory.  To take account of a             cooperating offender's conduct,  including his  role in  the             offense,  when deciding the  extent of a  downward departure             seems to us perfectly reasonable.   See Mariano, 983 F.2d at                                                 ___ _______             1156-57.  Soltero makes  no convincing argument that  such a             consideration somehow  reflects a basic  misunderstanding of             the guidelines.                       For these  reasons, the  judgment of  the district             court is                       Affirmed.                       ________                                         -6-                                          6
