
USCA1 Opinion

	




          July 7, 1993                                [Not for Publication]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2094                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                ABDULLAH SAUBAR, a/k/a                                AUBURN GLENN JOHNSON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________               Catherine C. Czar for appellant.               _________________               A. John  Pappalardo, United States Attorney,  and A. Clayton               ___________________                               __________          Spencer, Assistant United States Attorney, for appellee.          _______                                 ____________________                                 ____________________                    Per  Curiam.   Abdullah  Saubar  appeals the  nine-year                    Per  Curiam.                    ___________          prison sentence  imposed following his  conviction as a  felon in          possession  of a  firearm under  18 U.S.C.     922(g)(1), 924(e).          Section  924(e)  mandates a  minimum  sentence  of fifteen  years          unless  the  government  elects  to  exercise  its  discretionary          authority, under  18 U.S.C.    3553(e)1 and U.S.S.G.    5K1.1, to          recommend  a  downward  departure.    The  government  agreed  to          recommend  a  six-year  downward  departure  from  the  mandatory          fifteen-year  minimum.    Its  promise  was  conditioned  on  (1)          Saubar's  "specific agreement" to render "substantial assistance"          to the  government in other criminal  investigations and prosecu-          tions,  and  (2)  Saubar's  agreement  not  to  "argue" that  the          district  court impose  less than  the nine-year  sentence recom-          mended by the government.   At sentencing, the government  recom-          mended  the  six-year  downward  departure as  promised  and  the          district court approved the recommendation.                      Although   Saubar  concedes  that   we  lack  appellate          jurisdiction of  a sentencing appeal  brought by a  defendant who          seeks to challenge the extent of a downward departure, see, e.g.,                                 ______                          ___  ____          United  States v.  Pighetti, 898 F.2d  3, 4  (1st Cir.  1990), he          ______________     ________          argues for remand on the ground that the district court misappre-          hended  its sentencing  authority, as  well as  the  criteria for          quantifying its  downward departure  under section 3553(e).   See                                                                        ___                                        ____________________               1Section  3553(e)  provides  that,  "[u]pon  motion  of  the          Government, the  court  shall  have  the authority  to  impose  a          sentence below a level established by statute as minimum sentence          so  as to  reflect a  defendant's substantial  assistance  in the          investigation or prosecution of  another person who has committed          an offense."  18 U.S.C.   3553(e).          United  States v.  Amparo, 961  F.2d 288,  292 (1st  Cir.), cert.          ______________     ______                                   ____          denied,  113 S. Ct. 224 (1992).   Once the government "opened the          ______          door" by  making its section  3553(e) motion, the  argument goes,          the  sentencing  court  was  empowered to  enlarge  the  downward          departure   to   reflect    Saubar's   "extraordinary    physical          impairment."2  See U.S.S.G.   5H1.4.3                         ___                    It is well  settled in this  circuit that a  sentencing          court  may not depart  below a mandatory  minimum sentence unless          the government  makes a "substantial assistance"  motion pursuant          to 18 U.S.C.   3553(e) or U.S.S.G.   5K1.1.  See United States v.                                                       ___ _____________          Mazzaferro,  907 F.2d 251, 254  (1st Cir. 1990);  see also United          __________                                        ___ ____ ______          States v. Mariano,  983 F.2d 1150, 1155 (1st  Cir. 1993).  Saubar          ______    _______          is  bound by  the  terms under  which  the government  agreed  to          exercise  its  discretionary  power  to  make  its  indispensable          recommendation.   Acknowledging  his voluntary  agreement not  to          "argue  for  a  lower sentence,"  Saubar  says  that he  benignly          presented  "detailed  evidence" of  his  health  problems to  the          district court, but never actively  "argued" for a lower sentence                                    ________          on the  basis of his physical  condition.  At most,  he contends,          any request for a greater departure was "implicit."                                        ____________________               2Saubar   suffers  from  a   pre-offense  medical  condition          requiring kidney dialysis three times a week.  At sentencing, the          district court expressly acknowledged the seriousness of Saubar's          physical condition.               3Section  5H1.4 provides  that, though  "physical condition"          normally is not relevant to the sentencing decision, "an extraor-          dinary physical impairment may  be a reason to impose  a sentence          below  the applicable  guideline range;  e.g., in  the case  of a                                                   ____          seriously infirm  defendant, home  detention may be  as efficient          as, and less costly than, imprisonment."  U.S.S.G.   5H1.4.                                          3                    No matter which way Saubar turns, however, his claim is          stymied.  If  he presented his "physical  impairment" argument to          the district  court at  sentencing, even implicitly,  he breached          his  plea agreement with the  government and was  not entitled to          any  downward departure.    If he  did  not raise  his  precatory            5H1.4 argument at sentencing,  it is waived.  United  States v.                                                          ______________          Figueroa, 976 F.2d 1446, 1462 n.22 (1st Cir. 1992), cert. denied,          ________                                            ____  ______          113 S. Ct. 1346 (1993); United States v. Shattuck, 961 F.2d 1012,                                  _____________    ________          1015 (1st Cir. 1992); see United States v. Foster, 988  F.2d 206,                                ___ _____________    ______          209-10 (D.C. Cir. 1993)  (sentencing claim waived where defendant          merely recited  a list  of mitigating  factors that  the district                 _______          court should consider, but  did not tie evidence to  a particular                                              ___          legal  ground   for  a  greater  departure       i.e.,    3B1.2).                                                           ____          Moreover, having voluntarily accepted  the benefit of the promise          scrupulously  honored by  the  government,  Saubar surely  cannot          demonstrate  a  "miscarriage  of  justice"  or  the  "fundamental          unfairness"  required on "plain error" review.  See United States                                                          ___ _____________          v.  Montoya, 967 F.2d 1,  5 (1st Cir.)  (waived sentencing issues              _______          reviewed only for "fundamental unfairness"), cert. denied, 113 S.                                                       _____ ______          Ct.  507  (1992).   As it  "clearly  appears that  no substantial          question  is   presented,"  the  appeal  is  summarily  dismissed          pursuant to Local Rule 27.1.                    Dismissed.                    Dismissed                    _________                                          4
