202 F.3d 345 (D.C. Cir. 2000)
United States of America, Appelleev.Santos D. Vizcaino, Appellant
No. 99-3033
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 10, 2000Decided February 15, 2000

Appeal from the United States District Court for the District of Columbia(No. 97cr00259-01)
Lisa B. Wright, Assistant Federal Public Defender, argued  the cause for appellant.  With her on the briefs was A. J.  Kramer, Federal Public Defender.
Alex J. Bourelly, Assistant U.S. Attorney, argued the cause  for appellee.  With him on the brief were Wilma A. Lewis,  U.S. Attorney, and Darrell C. Valdez, John R. Fisher and  Mary-Patrice Brown, Assistant U.S. Attorneys.
Before:  Silberman, Williams and Tatel, Circuit Judges.
Tatel, Circuit Judge:


1
Sentenced for possessing with intent  to distribute both powder and crack cocaine, appellant argues  that the district court erred by failing to recognize its authority to depart downward pursuant to section 5K2.0 of the  United States Sentencing Guidelines on the ground that the  crack affected his sentence so significantly as to take it  outside of the Guidelines' "heartland."  Because appellant  failed to request such a downward departure in the district  court, and because the district court did not plainly err by  failing to grant it sua sponte, we affirm.


2
* A grand jury indicted appellant Santos Vizcaino for possessing with intent to distribute fifty grams or more of crack  cocaine and for possessing with intent to distribute powder  cocaine.  Pleading guilty to the powder cocaine count, Vizcaino avoided the ten-year statutory mandatory minimum sentence that would have applied had a jury convicted him on the  crack cocaine charge.  As a condition of dropping the crack  cocaine charge, the government required Vizcaino to accept  responsibility for approximately 185 grams of crack cocaine. Under the relevant Sentencing Guideline, a criminal defendant's sentence turns not only on the quantity of drugs  involved in the offense of conviction, but also on "all acts and  omissions ...  that were part of the same course of conduct  or common scheme or plan as the offense of conviction."United States Sentencing Guidelines S 1B1.3(a)(2).  Because  the Guidelines treat offenses involving crack more severely  than those involving only powder cocaine, Vizcaino's acceptance of responsibility for crack dramatically affected his  potential sentence.  Had his sentence been determined only  by the amount of powder cocaine to which he pled guilty, the  Guideline range would have been 27-33 months.  With the  crack, his Guideline range increased to 121-151 months. Recognizing the crack's impact on the potential sentence, the  district court informed Vizcaino at the plea colloquy that his  "lawyer and the government's lawyer have agreed that the Guideline range which is going to control the sentence that I  impose on you is, at bottom, 121 months and at top, 151  months."  Asked if he understood, Vizcaino answered, "Yes."The district court accepted Vizcaino's plea.


3
At sentencing, Vizcaino's counsel asked the district court to  depart below the 121-151 month Guideline range, explaining  only that "Mr. Santos Vizcaino has some material he wishes  to share ... which we think may take it below the Guidelines."  Vizcaino then told the court this:  "I want to explain  to you a few months ago I did sign a plea agreement to accept  responsibility for powder cocaine.  And based on this, I think  that I should be sentenced for powder cocaine, which would  change the category within the guidelines that were approved  by the Congress...."  Vizcaino spoke at length (for five or  six transcript pages) about his children, his wife, his drug use,  and the impact that his imprisonment was having on his  children.  The district court, apparently responding to Vizcaino's earlier statement that he had accepted responsibility for  powder cocaine, then pointed out:  "In your plea agreement,  in paragraph 3, you not only acknowledge responsibility for  the powder cocaine that formed the basis of the charge to  which you entered a plea of guilty, but you also acknowledged  that you were accountable for 185 grams of cocaine base, or  crack cocaine.  And the government's evidence would have  shown that that represented relevant conduct."  Vizcaino  responded:  "Your Honor, I believe my lawyer has a copy of  the plea agreement in which I said that I was held accountable for, I think, 200 grams of cocaine powder.  And over  here...."  The district court interrupted:  "You were accountable for 223 grams of cocaine powder and 185 grams of  crack.  In any event, the Guidelines leave me no choice  whatsoever, Mr. Vizcaino."  Vizcaino explained that he had  entered into the plea in order to avoid the statutory mandatory minimum sentence for crack cocaine, to which the district  court replied:  "There is not only the mandatory minimum  under the statute, but there are the Guidelines, which I mustfollow, and the Guidelines are, for my purposes, also mandatory.  I cannot depart from the Guidelines unless there is a  reason for doing so."


4
Concluding that "there is nothing in this record which,  under the law, as it has been interpreted by our court of  appeals, entitles me to depart from the Guideline range," the  district court sentenced Vizcaino to 121 months imprisonment, the lowest sentence in the Guideline range.  "Now let  me tell you this," the district court added:


5
This is one of those cases in which, in my judgment, the Guidelines operate to produce an unjust result.  Were I at liberty, I would sentence you to a somewhat lesser term of imprisonment, but I do not have that option....I have several highly complimentary letters having to do with Mr. Vizcaino, and they would, in the ordinary circumstances, be highly persuasive, were I at liberty to impose a lesser sentence than I am.  I am going to direct that these be filed and made part of the record in thiscase so that the court of appeals will have them availableto them when they determine whether or not I amcorrect in my determination that there is no basis for adeparture from the guidelines in this case.


6
Vizcaino now appeals from the 121-month sentence.

II

7
This appeal requires us to return to an oft-litigated issue: the scope of a district court's authority to depart downward  under section 5K2.0 of the United States Sentencing Guidelines. Section 5K2.0 provides:  "[T]he sentencing court may  impose a sentence outside the range established by the  applicable guidelines, 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 a sentence different from that described.' "  United  States Sentencing Guidelines S 5K2.0 (quoting 18 U.S.C. S 3553(b)).  The Supreme Court has explained that district  courts may depart under section 5K2.0 on the basis of a  particular factor not specifically mentioned in the Guidelines  if, "considering the structure and theory of both relevant  individual guidelines and the Guidelines taken as a whole ... it is sufficient to take the case out of the Guideline's heartland."  Koon v. United States, 518 U.S. 81, 96 (1996) (internal  citation and quotation marks omitted).


8
Citing cases from other circuits, Vizcaino maintains that the  district court erred by failing to recognize that where consideration of relevant conduct, i.e., conduct different from but  related to an offense of conviction, drastically affects a sentence, a district court has authority to depart downward.See, e.g., United States v. Lombard, 72 F.3d 170, 183-87 (1st  Cir. 1995) (holding that trial court had authority to depart  under section 5K2.0 where consideration of relevant conduct  raised defendant's sentence from 262 months to mandatory  life imprisonment);  United States v. Concepcion, 983 F.2d  369, 385-89 (2d Cir. 1992) (remanding to trial court to consider whether impact of relevant conduct, which increased defendant's sentence from 24-30 months to 262-327 months, warranted downward departure under section 5K2.0).  Although  this circuit has never considered whether district courts have  authority to depart on this ground, Vizcaino argues that his  sentence presents a compelling case for such a departure. His 121-month sentence was well over four times the low end  of the 27-33 month range that would have been applicable  had he been sentenced only for the powder cocaine included  in his plea agreement.  As Vizcaino observes, moreover, the  Guidelines offense level and resulting sentencing range were  determined exclusively by the 185 grams of crack;  the cocaine powder that Vizcaino possessed with intent to distribute  and that formed the basis of the offense to which he pled  guilty hadabsolutely no impact on his sentence.  Because of  this, and given the district court's clearly expressed concern  about the length of Vizcaino's sentence, the district court  might have considered departing downward had Vizcaino  made a section 5K2.0 argument.  But see United States v.  Lombard, 72 F.3d at 186-87 (noting that authority to depart  downward would not necessarily exist where case involved  only "sizable sentence increases based on an uncharged quantity of drugs").


9
As the government points out, however, neither Vizcaino  nor his lawyer requested such a departure.  Not only did his  lawyer fail to make any argument at all, but the closest  Vizcaino came to raising the issue was this:  "I think that I should be sentenced for powder cocaine, which would change  the category within the guidelines that were approved by the  Congress."  At most, this statement asked the district court  to exclude crack cocaine from its sentencing consideration. Because Vizcaino had accepted responsibility for the crack  and had not disputed that it was relevant conduct for purposes of the Guidelines, however, the district court had no  choice but to include crack in its sentencing calculations  unless the Guidelines provided some basis for not considering  it.  Vizcaino offered the district court no such basis.  To be  sure, Vizcaino was not required to state the issue as clearly as  appellate counsel has, or, for that matter, even to cite to  section 5K2.0 in order to preserve the issue for appeal.  But  absent any statement that the district court could have reasonably interpreted as arguing that crack so distorted the  sentence as to take it out of the Guidelines' heartland, we  cannot conclude that Vizcaino preserved the issue.


10
Citing United States v. Beckham, 968 F.2d 47 (D.C. Cir.  1992), Vizcaino contends that he need not precisely articulate  the basis for his downward departure request in order to  preserve the issue for appeal.  In Beckham, we remanded for  resentencing on the basis of a "refined" argument on appeal  even though in the district court the defendant, like Vizcaino,  only "complained about the harshness of his sentence in  general terms."  Id. at 53.  This case differs from Beckham  in a critical respect.  In Beckham, the government did not  argue that the defendant had waived his departure argument  by failing to ask for it in the district court.  Id. at 54 n.5  ("Although [the defendant's] refinement of the disproportionality argument was not raised below, the government failed to  object to it, or even to comment upon it, in its brief, thus  waiving any waiver argument it may have had.").  Far from  waiving the waiver issue in this case, the government has  argued it strenuously.


11
Because Vizcaino failed to preserve the argument for appeal, we review the district court's failure to depart sua  sponte at most for plain error.  See United States v. Albritton, 75 F.3d 709, 712 (D.C. Cir. 1996) ("assuming, without  deciding, that we conduct plain error review" where defendant waives downward departure argument).  As Vizcaino's  counsel conceded at oral argument, under a plain error  standard his downward departure argument is "in trouble."Even assuming the district court erred, absent precedent  from either the Supreme Court or this court holding that  relevant conduct's disproportional weight may form a basis  for a section 5K2.0 departure, the asserted error--failure to  recognize authority to depart on those grounds--falls far  short of plain error.  See United States v. Merlos, 8 F.3d 48,  51 (D.C. Cir. 1993) (absent an opinion by this circuit or the  Supreme Court on the issue in dispute, there is no plain error  unless district court failed to follow "absolutely clear" legal  norm such as clear statutory provision or court rule);  United  States v. Blackwell, 694 F.2d 1325, 1342 (D.C. Cir. 1982) ("the  lack of ... precedent in the circuit and the novelty of the  issue presented militate against" finding plain error).


12
Vizcaino's sentence is affirmed.


13
So ordered.

