
USCA1 Opinion

	




          April 23, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1831                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   THOMAS C. BOOTH,                                Defendant, Appellant.                                _____________________        No. 95-1838                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                           LISA BOOTH, a/k/a LISA VISCONE,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                      Aldrich and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________                                 ____________________            Sheila A.  Cook with whom  Law Offices of  William Maselli was  on            _______________            _______________________________        brief for appellant Thomas C. Booth.            E. James Burke and Bell & Burke, P.A.  on brief for appellant Lisa            ______________     __________________        Booth, a/k/a Lisa Viscone.            Margaret  D. McGaughey,  Assistant  United States  Attorney,  with            ______________________        whom Jay A. McCloskey, United States Attorney, and George T. Dilworth,             ________________  ______________________      __________________        Assistant United States Attorney, were on brief for appellee.            F. Mark  Terison, Assistant  United States  Attorney,  and Jay  P.            ________________                                           _______        McCloskey, United States Attorney, on brief for appellee.        _________  ______________________                                 ____________________                                 ____________________                      ALDRICH,  Senior  Circuit Judge.   Thomas  and Lisa                                _____________________            Booth  each pled guilty to one count of conspiracy to possess            and  distribute in  excess of  50 grams  of cocaine  base, in            violation  of 21  U.S.C.    841(a)(1), 841(b)(1)(A)  and 846,            and now appeal their respective sentences.  We affirm in both            cases.                      Thomas was, concededly,  a "career offender"  under             4B1.1  of  the Sentencing  Guidelines,  which  prescribed an            offense  level of 37.   The court  granted him  a three level            reduction for acceptance of responsibility, under  3E1.1, for            a total  adjusted  offense  level  of  34,  which  yielded  a            guideline sentencing  range of  262-327 months.   Pursuant to             5K1.1  of the  Guidelines, the  government recommended  a 20            percent departure below  the low end of  the guideline range,            based on  Thomas' forthright cooperation.   The court agreed,            sentencing Thomas to 204 months, or 17 years, as recommended.                      Thomas  sought  a  further  downward  departure for            having had an allegedly  minor role in the conspiracy,  which            the court denied.  He claims the court incorrectly ruled that            it  had  no  authority  to  depart  from  a  career  offender            guideline range on the  basis of a relatively lesser  role in            the offense.   Where the court's departure  decision may have            been affected by a mistaken view of the law,  it falls within            our  jurisdiction to review, de  novo.  See  United States v.                                         __  ____   ___  _____________            Webster,  54  F.3d 1,  4 (1st  Cir.  1995); United  States v.            _______                                     ______________                                         -3-            Gifford, 17 F.3d 462, 473 (1st Cir. 1994).            _______                      Thomas  stakes  his  claim  on   5H1.7,   a  policy            statement that  "defendant's role in the  offense is relevant            in determining  the appropriate  sentence,"  which refers  to            Chapter  Three, Part  B (Role  in the  Offense).   See, e.g.,                                                               ___  ____            U.S.S.G.   3B1.2  (allowing  downward adjustment  to  offense            level  for mitigating  role).1   We garner  little  from this            general truism  that establishes  authority to depart  on the            basis  of a defendant's role.   Especially should  this be so            when it is  not found in  Part K of  Chapter Five, where  the            permitted  bases for  departure are delineated.   Unspecified            departures  are  of course  allowed,  but  only where  "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."             5K2.0;  18 U.S.C.   3553(b).   Role-in-the-offense  has been            amply considered,  see generally U.S.S.G.  Ch.3, and downward                               ___ _________            adjustment for both  "minor" and "minimal"  role specifically            provided for.  See   3B1.2 and comment. (n.1  and 2).   Thus,                           ___            unless a  defendant's role  falls outside the  "heartland" of                                            ____________________            1.  Over  Thomas'  objection, the  court  ruled  that he  was            ineligible for a downward adjustment under  3B1.2 because the            career offender guideline allows but a single adjustment, for            acceptance  of  responsibility,  pursuant  to   3E1.1.    See                                                                      ___             4B1.1;  United States v. McCoy,  23 F.3d 216,  218 (9th Cir.                     _____________    _____            1994).   By way of  a footnote, Thomas  continues to register            his  disagreement,  but  forgoes  briefing  the  issue.    We            therefore deem it waived.                                         -4-            cases covered by this  provision "in a way that  is important            to   the  statutory  purposes   of  sentencing,"   5K2.0  and            comment., departure  is foreclosed.2   Thomas makes  no claim            that his does; nor do we believe he successfully could, given            the unequivocally  stated statutory  purpose to "assure  that            certain career  offenders receive a sentence  of imprisonment            at  or  near  the  maximum  term  authorized  [by  statute]."            U.S.S.G.    4B1.1,  comment.  (backg'd)   (citing  28  U.S.C.              994(h))  (internal quotations omitted).   See United States                                                        ___ _____________            v.  Norflett,  922  F.2d 50,  53  (1st  Cir. 1990)  (Congress                ________            intended there to be "precious little room to maneuver" below            the statutory maximum for career offenders).  Unsurprisingly,            then,  we find little regard  in the Guidelines  for a career            offender's  relative  role  in  his latest  enterprise.    In            accordance  with  congressional   directive,  see  28  U.S.C.                                                          ___              994(h),  the  career  offender  provision  "focuses on  the                                            ____________________            2.  Thomas claims United States v. Valdez-Gonzalez, 957  F.2d                              _____________    _______________            643  (9th Cir.  1992),  stands  for  the  contrary.    There,            downward adjustment under   3B1.2 was also  inapplicable, not            because defendants were  career offenders,  but because  they            were each the only participants in the offenses to which they            pled guilty.  Id.  at 648.  In nonetheless  allowing downward                          ___            departure  for  minimal  role,   the  court  ruled  that  the            Sentencing Commission had  not adequately considered relative            role  in a criminal  scheme extending  beyond the  offense at                                                   ______            hand, permitting a  5K2.0  departure where each defendant was            but a "mule"  in a  much larger criminal  operation than  the            single substantive offense he  committed.  Id. at 650.   Role                                                       ___            in a scheme  beyond the  conspiracy charged is  not at  issue            here, and Valdez-Gonzalez is  of questionable validity in any                      _______________            event.   See United States v. Webster, 996 F.2d 209, 211 (9th                     ___ _____________    _______            Cir. 1993).                                         -5-            recurrence of offenses  rather than on  the specifics of  the            most  recent offense."  United States v. Richardson, 923 F.2d                                    _____________    __________            13, 16                                         -6-            (2d Cir. 1991).  Thus, even properly construed as a claim for            departure under  5K2.0, Thomas' pitch falls short.                      Lisa  Booth  faced   a  20-year  mandatory  minimum            sentence, based  on a  prior  felony drug  offense, under  21            U.S.C.    841(b)(1)(A).   Upon the  government's  motion, the            court  halved her  sentence for  cooperation and  substantial            assistance.  See U.S.S.G.  5K1.1.  She complains, first, that                         ___            the  court took the 20-year mandatory minimum as its point of            departure, rather  than the  guideline range  of  100 to  125            months  calculated  from  her  offense  level  and   criminal            history.   Had the  court ignored the  statutory minimum  and            instead taken the calculated range as the guideline sentence,            its departure  would have produced a sentence  closer to five            years.   The simple answer  is that under  the Guidelines, "a            statutorily required minimum sentence . . .  greater than the            maximum of the  applicable guideline range . . . shall be the                                                             _____            guideline  sentence."   U.S.S.G.  5G1.1(b)  (emphasis added).            The remainder  of her complaint  quibbles with the  extent of            the court's departure, over which we  lack jurisdiction.  See                                                                      ___            United States v. Pighetti, 898 F.2d 3, 4 (1st Cir. 1990).            _____________    ________                      Affirmed.                      _________                                         -7-
