      [NOT FOR PUBLICATION – NOT TO BE CITED AS PRECEDENT]


          United States Court of Appeals
                      For the First Circuit

No.   00-2400


                    UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                           WILLIAM MOTT,

                      Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

          [Hon. Ernest C. Torres, U.S. District Judge]


                              Before

                 Lynch and Lipez, Circuit Judges,
                and Doumar, Senior District Judge.*



     Edward C. Roy, for appellant.
     Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Gerard B.
Sullivan, Assistant United States Attorney, were on brief, for
appellee.




      *
     Of   the    Eastern   District    of   Virginia,   sitting   by
designation.
October 1, 2001




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    PER CURIAM.    William Mott pled guilty to conspiracy to

 distribute cocaine base and aiding and abetting others to do

the same.    21 U.S.C. § 841(a)(1) (1994); 18 U.S.C. § 2 (1994).

    Mott appeals the decision of the District Court in its

  application of the sentencing guidelines, arguing that the

   Court erred when it:     1) established the amount of drugs

   constituting relevant conduct; 2) increased Mott’s base

offense level for use of a minor; and 3) denied Mott’s motion

for a downward departure.     For the reasons that follow, Mott’s

                      sentence is affirmed.

Mott allowed various drug dealers to use his apartment to sell

 drugs while he was accepting drugs in payment.     This was how

   he obtained his drugs as he was an addict.     One of these

 dealers was a 17-year-old boy named Benjamin Wilson, who was

arrested inside Mott’s apartment; Mott claims that he did not

know Wilson was a minor.     Upon arresting Mott and Wilson, the

police found 9.46 grams of cocaine base under a chair occupied

by Wilson.    Mott claims that these drugs should not have been

     utilized to determine his sentence for conspiracy to

  distribute because they were intended for his own personal

                                use.

Mott’s presentence report calculated his sentence as follows:

 Mott received a base offense level of 28 based on the amount


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of crack cocaine involved in both his offense conduct and his

 relevant conduct. Mott’s offense level was then increased by

 two because he allowed a juvenile to sell cocaine base from

his apartment. See U.S.S.G. § 2D1.1(c)(6). Mott then received

   a three-level decrease for acceptance of responsibility,

 see U.S.S.G. § 3E1.1(b), a two-level decrease for his minor

role in the offense, see U.S.S.G. § 3B1.2(b), and a two-level

  safety valve reduction. See U.S.S.G. § 5C1.2. Thus, Mott’s

  total adjusted offense level was 23, and, with a criminal

history category of I, Mott’s guideline range of imprisonment

 was 46 to 57 months.      The Court ultimately sentenced Mott to

              46 months.    Mott appeals his sentence.

 On appeal, challenges to a district court’s factual findings

in connection with sentencing hearings are reviewed for clear

 error. United States v. Santos-Batista, 239 F.3d 16, 21 (1st

Cir. 2001).    A district court must include in its drug weight

 calculations the drugs involved in any uncharged transaction

that was “part of the same course of conduct or common scheme

  or plan” as the charged conduct.      U.S.S.G. § 1B1.3(a)(2).

    Moreover, in the case of “jointly undertaken criminal

   activity,” such as in the instant case, the defendant is

responsible at sentencing for “all reasonably foreseeable acts

    and omissions of others in furtherance of the jointly


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 undertaken criminal activity . . . that occurred during the

commission of the offense of conviction.”      Id. § 1B1.3(1)(B).

The district court employs the “preponderance of the evidence”

  standard in making its drug quantity and relevant conduct

          findings.    Santos-Batista, 239 F.3d at 21.

The undisputed facts establish that, as part of the conspiracy

   to sell cocaine base from Mott’s apartment, Mott allowed

 Wilson and other dealers to use his apartment in return for

free cocaine base. The parties also agree that, shortly before

  the search, Wilson made a sale of cocaine base from Mott’s

 apartment, as charged in Count 7 of the indictment, to which

 Mott pled guilty. The district judge rejected, as a factual

matter, the argument that the cocaine under Wilson’s chair was

  not for sale, but was for Mott’s personal use.      Thus, the

cocaine seized from beneath Wilson’s chair in Mott’s apartment

was properly attributable to Mott, for purposes of sentencing,

  as part of the underlying distribution conspiracy, and the

   district court did not commit clear error in making this

                      factual determination.

 Mott next argues that the district court erred in imposing a

  two-level enhancement under U.S.S.G. § 3B1.4 upon making a

   factual determination that Mott involved a minor in the

 commission of his offense.    Mott first contends that he was


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unaware of Wilson’s age; second, he says that he did not “use

   or attempt to use a minor.”         Again, the district court’s

decision in that regard is reviewed for clear error.         Santos-

                    Batista, 239 F.3d at 21.

   The provision at issue states: “If the defendant used or

 attempted to use a person less than eighteen years of age to

  commit the offense or assist in avoiding detection of, or

  apprehension for, the offense, increase [the base offense

level] by 2 levels.” U.S.S.G. § 3B1.4.         As to the first point,

 Mott’s contention that he did not know Wilson was a minor is

 irrelevant.   There is no scienter element in this guideline,

 and no Court has seen fit to read one in.         See United States

v. Gonzalez, 2001 WL 946335, *2 (9th Cir. 2001); United States

 v. McClain, 252 F.3d 1279, 1285 (11th Cir. 2001).         As to the

 second point, the First Circuit has held that an enhancement

 under § 3B1.4 may be based on the relevant conduct principle

 that defendants are responsible for the foreseeable acts of

their co-conspirators.   United States v. Patrick, 248 F.3d 11,

26-28 (1st Cir. 2001) (holding that a defendant head of a drug

    conspiracy who did not personally employ minors in the

  conspiracy was nonetheless responsible for the reasonably

foreseeable employment of minors by his co-conspirators).            It

 follows that under §1B1.3 of the sentencing guidelines, Mott


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  is liable for his unindicted co-conspirators’ foreseeable

actions to use the minor Wilson for the drug sales which form

     the basis of the conspiracy.    There was an adequate

evidentiary basis for the trial judge to conclude that the use

of Wilson was foreseeable to Mott.   Mott was aware that Wilson

    was selling drugs from the apartment and agreed to it.

   Finally, Mott claims that the district court should have

granted his motion for a downward departure on the basis that

    1) he was addicted to cocaine base at the time of the

 offenses; 2) he was victimized by higher-level drug dealers;

3) his offense conduct constituted “aberrant behavior” because

 he had previously been law-abiding; and 4) he suffered from

 extraordinary physical, mental, and emotional conditions due

  to his cocaine addiction. Mott contends that the district

 court therefore abused its discretion by denying his motion,

and that the district court improperly believed that it lacked

    the authority to grant the downward departure motion.

 It is well settled that “[a] district court’s discretionary

 refusal to depart downward is unreviewable unless the court

believed it lacked the authority to do so.” Patrick, 248 F.3d

 at 28. A defendant must show more than an arguable ambiguity

  in a district court’s ruling denying a downward departure

motion to establish that the court acted in the belief that it


                              -7-
lacked authority to depart.   United States v. Deleon, 187 F.3d

                   60, 69 (1st Cir. 1999).

In the present case, Mott does not even point to any ambiguity

in the district court’s ruling. Nor could he. In the words of

              the district court at sentencing:

   I don’t believe you qualify for a downward departure. You
    certainly have accepted responsibility, I have no way of
 knowing how sincere or genuine your acceptance is, but I take
 you at your word. You’ve accepted responsibility, and you got
   credit for that. You had a relatively minor role in these
 offense [sic], and you got credit for that, too. You have had
 a good record up until now, but that doesn’t entitle you to a
  downward departure. I don’t think your case is sufficiently
  outside the heartland. It’s not sufficiently different from
other cases like that that would warrant a downward departure.

                   Sentencing Tran. 31-32.

The instant case is indistinguishable from Patrick, where the

First Circuit affirmed a district court’s denial of a downward

  departure motion where “the district court, exercising its

 discretion, found it inappropriate to depart because Patrick

had not identified any factors that took his case outside the

           ‘heartland.’ ” Patrick, 248 F.3d. at 28.

 In sum, there is nothing in the district court’s explanation

   for its denial of Mott’s downward departure motion that

suggests the district court thought or believed it lacked the

   authority to depart. Consequently, this Court is without

    authority to review the district court’s denial of the



                               -8-
downward departure motion, and Mott’s appeal may not be

               sustained on this basis.

                       Affirmed.




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