

                     NOT FOR PUBLICATION                                                    

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 96-1527

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                         OMIL ARROYO,

                    Defendant, Appellant.
                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

     [Hon. Francis J. Boyle, Senior U.S. District Judge]                                                                   

                                         

                            Before

                    Boudin, Circuit Judge,                                                     

                 Hill,* Senior Circuit Judge,                                                        

             and Pollak,** Senior District Judge.                                                            

                                         

Stephen R. Kaplan, by Appointment of the Court, for appellant.                             
Margaret E.  Curran, Assistant United  States Attorney,  with whom                               
Richard  W.  Rose,  Assistant  United  States  Attorney,  and  Sheldon                                                                              
Whitehouse,  United  States Attorney,  were  on brief  for  the United                  
States.

                                         

                      September 29, 1997
                                         

           

*Of the Eleventh Circuit, sitting by designation.
**Of the Eastern District of Pennsylvania, sitting by designation.

     Per  Curiam.   Appellant Omil  Arroyo  was convicted  on                            

charges of possession with intent to deliver 50 grams or more

of cocaine base and 500 grams or more of powdered cocaine, 21

U.S.C.   841(a)(1),   and sentenced to 151  months in prison,

the  low  end  of  the  range  determined  by the  Sentencing

Guidelines.   He  challenges both  the jury  verdict  and his

sentence,  beginning with a claim that there was insufficient

evidence to support the conviction.    

     In reviewing a  verdict for evidentiary sufficiency,  we

resolve  all legitimate evidentiary conflicts in favor of the

verdict.  See United States v. Ruiz, 105 F.3d 1492, 1495 (1st                                               

Cir.  1997).  Arroyo's main insufficient-evidence argument is

that  there  was no  proof  that  he exercised  dominion  and

control over the  drugs in question.  However,  the drugs and

related paraphernalia were found  in Arroyo's apartment, some

in plain view.

     Although Arroyo and a defense witness testified that two

friends also lived in his apartment, the jury was entitled to

disbelieve this testimony  in light of Arroyo's  inability to

identify where these  friends worked or where  they had lived

before  moving in  with him.   The government's  evidence was

clearly "sufficient  to warrant a  jury to conclude  that the

defendant  is  guilty  beyond a  reasonable  doubt."   United                                                                         

States v. Paiva, 892 F.2d 148, 161 (1st Cir. 1989).                           

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     Arroyo also attacks the Sentencing Guidelines' treatment

of  cocaine base  as 100  times  more serious  than an  equal

amount of powdered cocaine.  This Court has already  rejected

an  equal protection challenge  to the differential.   United                                                                         

States v. Singleterry, 29 F.3d 733, 740-41 (1st  Cir.), cert.                                                                         

denied, 513 U.S.  1048 (1994).   Here, Arroyo simply  recasts                  

the attack as a claim  that the differential should have been

treated as a ground for a downward departure.

     But  a  refusal  to depart  downward  is  not reviewable

unless  it  rests on  a  mistake  of  law, United  States  v.                                                                     

Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996), and Arroyo has                       

not  pointed to  any  misapprehension  of  authority  by  the

sentencing judge.   Further,  even if  the refusal  to depart

were reviewable, the use of  a 100-to-1 ratio is part of  the

guideline--not itself  an unusual  circumstance or  condition

that  might take the  case outside the  "heartland of typical

cases" envisioned  by the Sentencing Guidelines.  See Koon v.                                                                      

United States, 116 S. Ct. 2035, 2044 (1996).                           

     Finally,  Arroyo argues that the district court erred in

ruling  that  he was  not  eligible  for the  "safety  valve"

reduction provided by  U.S.S.G.   2D1.1(b)(4).   The district

court  concluded that Arroyo had not satisfied the conditions

of  this provision because he had  not truthfully provided to

the government all  of the information  he had pertaining  to

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the offenses.   U.S.S.G.   5C1.2(5).  Arroyo  asserts that he

is innocent and thus had no information to provide.  

     Arroyo had the  burden of convincing the  district court

that he qualified for the safety valve reduction.  See United                                                                         

States v.  Montanez, 82 F.3d  520, 523  (1st Cir. 1996).   We                               

review   only  for   clear   error   the   district   court's

determination   that  Arroyo  was  guilty  and  so  did  have

information  to  provide.    See United  States  v.  Miranda-                                                                         

Santiago, 96 F.3d  517, 527 (1st  Cir. 1996).  Since  we have                    

already  held that the  evidence was sufficient  to establish

guilt  beyond  a  reasonable  doubt,  obviously  the district

court's determination--based on a less demanding standard and

a reversal of the burden of proof--cannot be clear error.  

     Affirmed.                         

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