
USCA1 Opinion

	




        July 1, 1992            [NOT FOR PUBLICATION]                                 ____________________        No. 92-1489                                     UNITED STATES,                                      Appellee,                                          v.                                JOSE ANTONIO GONZALEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                            ____________________            Robert A. Levine on brief for appellant.            ________________            Richard  S.  Cohen,  United  States  Attorney,  Jonathan A.  Toof,            __________________                              _________________        Assistant United States Attorney, and Margaret D. McGaughey, Assistant                                              _____________________        United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.     Defendant  pled   guilty  to   (1)                      ___________            conspiracy to  possess with intent to  distribute cocaine and            (2) use of  a person under eighteen to distribute  and to aid            and abet the possession with intent to distribute cocaine, 21            U.S.C.     841(a)(1),  846.   He received  a fifty-one  month            sentence, the lowest sentence under the applicable guideline.            On appeal, defendant  raises one issue  -- that his  asserted            youthful appearance and potential for victimization in prison            was a ground warranting a downward sentencing departure.                      Defendant was  nineteen when he  committed the drug            offenses and approximately two  months short of his twentieth            birthday when he was  sentenced.  The prosecutor acknowledged            at sentencing that defendant  "obviously . . . is  a youthful            looking  person."    According  to  the  presentence  report,            defendant is 5'10" tall and weighs 125 pounds.                      Relying on two second circuit cases,  United States                                                            _____________            v. Gonazalez, 945 F.2d 525 (2d Cir. 1991) (downward departure               _________            for  19-year-old  defendant who  looked 14  or  15 and  had a            "feminine cast to his  face and a softness of  features which            will make  him prey  to long-term criminals"  upheld); United                                                                   ______            States  v.  Lara, 905  F.2d  599  (2d Cir.  1990)  (upholding            ______      ____            downward  departure  because defendant's  youthful appearance            (was 22, but looked 16) and bisexual orientation had rendered            him  extremely  vulnerable  to  physical  attack  and  prison            officials had  been  unable  to protect  him  other  than  by                                         -2-            placing  him  in solitary  confinement), defendant  argues on            appeal, as he did below, that defendant's youthful appearance            rendered  him  particularly  vulnerable to  victimization  in            prison, that this alleged vulnerability was a circumstance of            a  kind or  to  a degree  not  adequately considered  by  the            sentencing commission,  and that  hence a  downward departure            was warranted.                      Defendant acknowledges our repeated  statement that            ordinarily  a  district  court's  refusal to  depart  is  not            appealable.  See United  States v. Hilton, 946 F.2d  955, 957                         ___ ______________    ______            (1st Cir. 1991)  and cases  collected therein.   He seeks  to            come within  an exception permitting review  when the court's            decision not  to depart is based on the mistaken view that it            lacked the legal authority to depart.  Id.                                                   ___                      Our  review of  the  record convinces  us that  the            district court found  no need to  address the legal  question            whether  youthful appearance and  potential for victimization            could  ever  be  proper  grounds  for  departure  because  it            concluded  as  a  factual   matter  that  defendant  was  not            unusually vulnerable to attack.  The court stated as follows:                           I . . . find that [defendant] is not                      by  virtue  of  his  appearance  uniquely                      subject to victimization  in prison  more                      than average 19-year-olds.                                       .  .  .                           I   decline   to  depart   from  the                      guideline  range.  I'm not persuaded that                      [defendant] . .  . is so uniquely  likely                                         -3-                      to  be  victimized   in  prison  that   a                      downward adjustment is called for.                      Defendant  regards  these  remarks   as  ambiguous,            calling for  a remand, but we do not.  The district court was            clearly  appraised  of  defendant's  legal  position  through            defendant's citation to the  Second Circuit cases, but found,            in the case before him, no unusual vulnerability.  We have no            basis to disturb the factual finding.                      The appeal is summarily dismissed pursuant to First            Circuit Rule 27.1.                                         -4-
