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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 97-2412 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                       JUAN CARLOS CADAVID, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>           [Hon. Robert E. Keeton, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                      Lipez, Circuit Judge, <br> <br>                    and Fust, District Judge. <br> <br>                      _____________________ <br> <br>    Mark F. Itzkowitz, by appointment of the Court, for appellant. <br>    Michael D. Ricciuti, Assistant United States Attorney, with <br>whom Donald K. Stern, United States Attorney, was on brief, for <br>appellee. <br> <br> <br>                       ____________________ <br> <br>                        October 1, 1999 <br>                       ____________________

         FUST
, District Judge.  Appellant, Juan Carlos Cadavid, <br>challenges the district court's calculation of his criminal <br>sentence.  For the reasons fully enunciated herein, we affirm the <br>district court's determination. <br>                                I. <br>                           Introduction <br>         On November 29, 1995, a grand jury indicted Cadavid and <br>Albeiro Castrilln for a conspiracy to possess cocaine with intent <br>to distribute from August 19, 1992, until September 4, 1992, in <br>violation of 21 U.S.C.  846 ("count one"); possession of cocaine <br>with intent to distribute and aiding and abetting on August 29, <br>1992, in violation of 21 U.S.C.  841(a)(1) and 18 U.S.C.  2 <br>("count two"); Cadavid and Jess Gutirrez with a conspiracy to <br>possess cocaine with intent to distribute from January 1, 1994, <br>until September 30, 1994, ("count three"); possession and <br>distribution of cocaine in or about January 1994 ("count four"); <br>June 1994 ("count five"); between June and September 1994 ("count <br>six"); and on September 15, 1994 ("count seven"). <br>         On May 27, 1997, pursuant to a plea agreement, Cadavid <br>pled guilty to counts one through seven of the superseding <br>indictment.  Prior to his sentencing hearing, Cadavid filed <br>objections to the Pre-Sentence Report ("PSR") which were followed <br>by sentencing memoranda filed by both Cadavid and the government. <br>         On November 21, 1997, the district court sentenced <br>Cadavid.  At the hearing, the court ruled on objections to the PSR <br>filed by Cadavid and rejected his request for a downward departure.  <br>The district court determined that Cadavid's total offense level <br>was a 36 with a criminal history category ("CHC") of II.  <br>Therefore, the court found that the applicable U.S.S.G. range was <br>210 to 262 months.  Accordingly, the court imposed a 228-month <br>incarceration sentence, representing a partially concurrent <br>disposition to an extant 108-month federal sentence Cadavid was <br>currently serving, followed by 60 months of supervised release, and <br>a special monetary assessment of three-hundred and fifty dollars. <br>                               II. <br>                        The Plea Agreement <br>         The plea agreement specified that the quantity of <br>narcotics attributable to Cadavid was between 50 and 150 kilograms <br>of cocaine; that because he accepted responsibility under U.S.S.G. <br> 3E1.1(a), Cadavid was entitled to a two-point reduction in his <br>base offense level; that because Cadavid had provided the <br>government with information regarding his own involvement in the <br>offense within the meaning of U.S.S.G.  3E1.1(b), he was entitled <br>to a one-point reduction in his base offense level under U.S.S.G. <br> 3E1.1(b)(1); and that the sentence the court imposed would run <br>partially concurrently with a prior federal sentence Cadavid was <br>serving in the Southern District of Florida pursuant to U.S.S.G. <br> 5G1.3(c).  The agreement further stated that "there is no basis <br>for departure." <br>         The agreement also enunciated several disputed issues <br>between the parties.  First, the government explicitly reserved the <br>right to argue for an upward role adjustment of no more than three <br>points for Cadavid's role in the offense pursuant to U.S.S.G. <br> 3B1.1.  Cadavid reserved the right to oppose that argument and to <br>argue that no upward adjustment was appropriate.  Second, Cadavid <br>reserved his right to contend that his prior 1994 sentence was for <br>conduct that formed part of the instant offense within the meaning <br>of U.S.S.G.  4A1.2(a)(1).  The government reserved the right to <br>dispute this point and oppose any incorrect application of the law.  <br>Finally, the government agreed not to argue that CHC III applies in <br>this case.  Pursuant to the plea agreement, Cadavid pled guilty on <br>May 27, 1997. <br>                               III. <br>                      The Presentence Report <br>         The Probation Department concluded, pursuant to U.S.S.G. <br> 2D1.1 and the quantity of cocaine involved in this case, that <br>Cadavid's base offense level was 36.  They further determined that <br>an upward adjustment of three points was appropriate considering <br>Cadavid's managerial or supervisory role in a criminal activity <br>that involved more than five people. U.S.S.G.  3B1.1(c).  The <br>Probation Department further credited Cadavid with a three-point <br>downward adjustment for acceptance of criminal responsibility  <br>pursuant to U.S.S.G.  3B1.1(b).  Thus, Cadavid's adjusted base <br>offense level, as calculated by the Probation Department, was 36. <br>         In calculating Cadavid's criminal history, the Probation <br>Department found five prior convictions: (1) a 1988 Florida state <br>court conviction for disorderly intoxication to which Cadavid pled <br>nolo contendere and received an adjudication withheld, a fine and <br>was ordered to pay costs; (2) a 1990 Florida state court conviction <br>for driving under the influence of alcohol ("DUI") for which <br>Cadavid was found guilty, fined, sentenced to fifty hours of <br>community service followed by six months probation and ordered to <br>attend a DUI school; (3) a 1990 Florida state court conviction for <br>battery to which Cadavid pled nolo contendere and received an <br>adjudication withheld and an order to pay court costs; (4) a 1991 <br>Florida state court conviction for DUI to which Cadavid pled nolo <br>contendere and received an order to pay a fine; and (5) the 1994 <br>federal narcotics conviction.  Based upon this history, the <br>Probation Department determined that Cadavid had six criminal <br>history points: one point for the 1990 DUI conviction pursuant to <br>U.S.S.G.  4A1.2(c); one point for the 1990 battery conviction <br>pursuant to U.S.S.G.  4A1.2(f); one point for the 1991 DUI <br>conviction pursuant to U.S.S.G.  4A1.2(c); and three points for <br>the 1994 narcotics conviction pursuant to U.S.S.G.  4A1.1(a).  <br>Therefore, the Probation Department originally calculated Cadavid's <br>CHC to be III and the applicable sentencing range to be 235 to 293 <br>months. <br>         The Probation Department next noted that Cadavid was <br>currently serving an undischarged 108-month federal sentence and <br>that the court had the discretion to impose a concurrent, partially <br>concurrent or consecutive sentence with the prior sentence. <br>U.S.S.G.  5G1.3(c) (1997).  The Probation Department then <br>suggested a partially concurrent sentence and computed the <br>additional consecutive component of punishment for Cadavid to be <br>served after completion of his extant federal sentence.  See <br>U.S.S.G.  5G1.3(c) nn. 3-5.  In order to create a theoretical <br>yardstick upon which to evaluate the proposed section 5G1.3(c) <br>partial concurrence and the extent of any consecutive component of <br>the sentence, the Probation Department consolidated the 1994 <br>conviction and the instant offense by combining the amounts of <br>cocaine from both offenses (73.995 kilograms, base offense level <br>36).  Next, they added the three-point leadership enhancement, then <br>subtracted three points for acceptance of responsibility.  Since <br>they consolidated the two cases, the Probation Department ignored <br>the three criminal history points from the 1994 narcotics <br>conviction and used CHC II in its recommendation.  The Probation <br>Department determined that Cadavid's "theoretical guideline <br>sentencing range" for both the 1994 and 1997 offenses was 210 to <br>262 months (offense level 33, CHC II).  Thus, the Probation <br>Department concluded that the appropriate incremental punishment <br>pursuant to U.S.S.G.  5G1.3(c) was to add 118 to 170 months to <br>Cadavid's prior 108-month sentence. <br>                               IV. <br>                       Cadavid's Objections <br>         Two months prior to sentencing, on September 17, 1997, <br>Cadavid obtained new counsel.  Cadavid then filed several <br>objections to the PSR's criminal history calculation.  <br>Specifically, he alleged that: (1) the award of one criminal <br>history point for the 1991 DUI conviction was erroneous because he <br>was not represented by counsel; (2) the award of one criminal <br>history point for the 1990 battery conviction was erroneous because <br>a sentence of adjudication withheld fails to constitute a judicial <br>determination of guilt; and (3) the award of three criminal history <br>points for the 1994 narcotics case was erroneous because it <br>constituted the "same course of conduct as alleged in the <br>Indictment." <br>         The Probation Department disagreed with each of Cadavid's <br>objections finding that: (1) the 1991 conviction, even if no <br>counsel was present, was for a misdemeanor and thus eligible to <br>count pursuant to Nichols v. United States, 511 U.S. 738 (1994) <br>(holding that, consistent with the Sixth and Fourteenth Amendments, <br>uncounseled misdemeanor conviction is valid for use in enhancing <br>punishment at subsequent conviction); (2) the 1990 "adjudication <br>withheld" battery conviction was properly counted as a diversionary <br>disposition under U.S.S.G.  4A1.2(f); and (3) the 1994 conviction <br>and this case were separate. <br>         Cadavid then filed a sentencing memorandum raising, for <br>the first time, the contention that he was entitled to the benefit <br>of the "safety valve" pursuant to U.S.S.G.  5C1.2(5).  Cadavid <br>also claimed that there were grounds for departure from the <br>guidelines, despite the fact that the agreement provided that no <br>such grounds existed.  The five specific grounds he claimed <br>included: (1) that he suffered a physical injury while in prison; <br>(2) that he would agree to deportation; (3) that his criminal <br>activity constituted aberrant behavior; (4) that his criminal <br>history was overstated; and (5) that there were a combination of <br>these factors. <br>         Perceiving Cadavid's contentions for a downward departure <br>as a breach of his pledge under the plea agreement not to seek such <br>a departure, the government objected and withdrew from the <br>agreement prior to sentencing.  Nonetheless, the withdrawal was of <br>no effect as the government maintained its original positions as <br>stated in the agreement. <br>                                V. <br>                        Sentencing Hearing <br>         At the sentencing hearing, the district court found that <br>even if it were to accept Cadavid's challenge to the 1991 DUI <br>conviction, the two points from the 1990 DUI conviction coupled <br>with the battery conviction sufficed to place Cadavid in CHC II.  <br>The court endorsed the criminal history calculation of the PSR, <br>grounded in U.S.S.G. 5G1.3(c), and the determination that Cadavid <br>had a CHC of II.  Cadavid objected, asserting that the battery <br>conviction should not count because an adjudication withheld fails <br>to constitute a judicial determination or admission of guilt.  The <br>district court disagreed but went on to hold that, alternatively, <br>even if it sustained each of Cadavid's objections, a CHC of I <br>constituted a "gross understatement of the severity of this <br>defendant's record."  The court went on to note that: <br>                      If I took the closest look possible in <br>           [Cadavid's] favor and came to the <br>           conclusion you were right, I've just said <br>           to you it would not make any difference in <br>           my sentence in this case, because if I did <br>           that, then I would plainly be forced to <br>           the conclusion in my mind, to do a fair <br>           sentencing adjudication, to determine that <br>           a CHC of "I" seriously under-represents <br>           the severity of this defendant's criminal <br>           record. <br> <br>The district court proceeded to apply CHC II.  The Memorandum of <br>Sentencing Hearing and Report of Statement of Reasons further <br>illuminates this point. <br>         The court, citing the PSR, also imposed a three-level <br>upward adjustment, adding: <br>                      [T]his is not at all a situation in which <br>           Mr. Cadavid, who is before me now, <br>           functioned in the role comparable to a <br>           foreman.  He was involved in planning and <br>           directing methods of operation by the <br>           other participants in the offense charged <br>           here and I find that the 3B1.1(b) <br>           adjustment of three points is entirely <br>           appropriate. <br> <br>         As to Cadavid's safety valve argument, the court <br>concluded that his written proffers lacked both in veracity and <br>completeness.  The court, accordingly, disregarded the safety valve <br>issue.  The court further rejected Cadavid's contention that the <br>1994 conviction and the instant case were part of the same course <br>of conduct and, therefore, the same offense.  In rejecting this <br>claim, the court relied upon the Probation Department's proposal <br>enunciated in the PSR and consolidated the 1994 conviction with the <br>current case while disregarding the three criminal history points <br>arising from the 1994 conviction.  The court concluded that <br>Cadavid's sentencing guideline range was 210 to 262 months, his <br>total offense level was 36, and his CHC was II. <br>         The court next considered Cadavid's claims for a downward <br>departure.  Following oral argument, the court rejected Cadavid's <br>contentions that a downward departure was appropriate.  The court <br>examined each of Cadavid's claims and rejected them in turn. <br>         In conclusion, the court imposed a sentence of 228 months <br>upon Cadavid.  Exercising its discretion under U.S.S.G.  5G1.3(c), <br>the court ordered that the sentence be partially concurrent with <br>the 108-month sentence Cadavid was currently serving. See U.S.S.G. <br> 5G1.3(c) n.5.  The court obviously had considered the relevant <br>guidelines factors in imposing a partially concurrent sentence.  <br>Therefore, the court ordered Cadavid to serve 120 months beyond the <br>completion of his sentence in the 1994 narcotics case. <br>                               VI. <br>                            The Issues <br>         The following issues are now before this Court: (1) <br>whether the district court committed plain error in assessing <br>Cadavid a three-point upward adjustment under U.S.S.G.  3B1.1; (2) <br>whether the district court erred in calculating Cadavid's CHC; (3) <br>whether the district court committed clear error in determining <br>that Cadavid failed to meet the requirements of the "safety valve" <br>provision in U.S.S.G.  5C1.2 and 2D1.1(b)(4); and (4) whether <br>this Court lacks jurisdiction to review the district court's <br>discretionary refusal to depart downward from the otherwise <br>applicable Guidelines sentencing range. <br>                               VII. <br>                  Cadavid's Role in the Offense <br>         Adopting the recommendation of the PSR, the district <br>court increased Cadavid's base offense level by three points, <br>concluding that he held a leadership or supervisory role over at <br>least five other persons in the drug enterprise.  Cadavid <br>challenges the facts underlying the adjustment, specifically <br>concerning the number of persons involved, and contends that the <br>court clearly erred in its upward role in the offense adjustment. <br>         The Guidelines provide for a three-level enhancement of <br>a defendant's offense level if he acts as a manager or supervisor <br>of a criminal enterprise that either includes five or more <br>participants (including the defendant) or is "otherwise extensive." <br>See U.S.S.G.   3B1.1(b) (1997).  This determination requires a <br>two-step showing: (1) "evidence that a defendant, in committing the <br>crime, exercised control over, or was otherwise responsible for <br>overseeing the activities of, at least one other person," United <br>States v. Voccola, 99 F.3d 37, 44 (1st Cir. 1996); and (2) that the <br>criminal scheme had five or more participants or was "otherwise <br>extensive."  U.S.S.G.  3B1.1(b) (1997).  The specific contours of <br>the terms manager and supervisor are not elucidated.  However, the <br>guidelines offer direction to courts in making the distinction <br>between a manager/supervisor and a leader/organizer.  The factors <br>identified are: <br>                      [t]he exercise of decision making <br>           authority, the nature of participation in <br>           the commission of the offense, the <br>           recruitment of accomplices, the claimed <br>           right to a larger share of the fruits of <br>           the crime, the degree of participation in <br>           planning or organizing the offense, the <br>           nature and scope of the illegal activity, <br>           and the degree of control and authority <br>           exercised over others. <br> <br>U.S.S.G.  3B1.1, n.4 (1997). <br>         We review role in the offense determinations, steeped in <br>the facts of the case, under a clearly-erroneous standard.  See <br>United States v. Fontana, 50 F.3d 86, 87 (1st Cir. 1995) (citing <br>United States v. Ovalle-Mrquez, 36 F.3d 212, 225 (1st Cir. 1994)).  <br>"[B]arring a mistake of law . . . 'battles over a defendant's <br>status . . . will almost always be won or lost in the district <br>court.'"  United States v. Conley, 156 F.3d 78, 85 (1st Cir. 1998) <br>(quoting United States v. Graciani, 61 F.3d 70, 75 (1st Cir. <br>1995)).    Cadavid contends that the evidence presented does not <br>clearly identify five separate persons and that the evidence does <br>not support Cadavid's upward adjustment as a manager or supervisor.  <br>We disagree.  The PSR concluded that there were seven members of <br>the 1994 conspiracy: (1) Cadavid; (2) John Freddy Cadavid; <br>(3) Jess Gutirrez; (4) Fabio Pulgarn; (5) Ivn Ricuarte; (6) an <br>unknown Hispanic male; and (7) a second unknown Hispanic male.  <br>Based upon this report and the record, the court concluded that <br>there were more than five participants in the conspiracy.  We find <br>this ruling is not clearly erroneous.  Even if, as Cadavid asserts, <br>one were to concede that the two unknown Hispanic males were either <br>the same person or another named member of the conspiracy, we still <br>count five participants. <br>         Furthermore, we find the record clearly supports the fact <br>that Cadavid exercised control over the activities of at least one <br>other person.  We find the record to be replete with instances of <br>Cadavid exercising a managerial or supervisory role.  A few <br>examples include: Cadavid's supervision, management and payment of <br>Gutirrez and Pulgarn in the January 1994 cocaine transaction; <br>Cadavid's hiring of Pulgarn and Gutirrez to transport cocaine <br>from Massachusetts to New York; Castrilln's statements that he <br>worked for Cadavid; and Cadavid identifying one of the unknown <br>Hispanic males as his worker during a cocaine transaction in <br>September 1994.  Therefore, we conclude that the district court's <br>role in the offense determination was not clearly erroneous. <br>                              VIII. <br>           Cadavid's Criminal History Category ("CHC") <br>          Cadavid argues that the court improperly calculated his <br>CHC by erroneously including points in its tabulation.  <br>Specifically, he maintains that (1) the 1990 battery conviction <br>which resulted in a judgment of "adjudication withheld" and where <br>he was not assisted by counsel and (2) the 1991 DUI conviction <br>which resulted in a work release sentence and under which he was <br>not represented by counsel, should be excluded from the computation <br>of his CHC.  He further contends that the court failed to resolve <br>this dispute and instead relied upon U.S.S.G.  4A1.3 to upwardly <br>depart. <br>         We begin by examining the district court's calculation.  <br>The court stated that it was relying upon the PSR and Cadavid's <br>entire record of past malfeasance to determine that CHC II was the <br>proper category.  The court swiftly agreed with the PSR's criminal <br>history calculation.  As an alternative basis, the court found that <br>CHC I unjustly under-represented Cadavid's criminal past.  See <br>U.S.S.G.  4A1.3 (1997).   <br>         We agree with the court's determination and the PSR's <br>calculation that Cadavid's criminal history places him in CHC II.  <br>We find that combining Cadavid's criminal history points from his <br>1989 DUI conviction with his 1990 battery conviction places him in <br>CHC II.  Alternatively, we turn to the court's alternative <br>departure ground. <br>         We employ a tripartite test to review a district court's <br>departure decision on CHC under U.S.S.G.  4A1.3: <br>                      First, we determine as a theoretical <br>           matter whether the stated ground for <br>           departure is permissible under the <br>           guidelines.  If the ground is <br>           theoretically appropriate, we next examine <br>           whether it finds adequate factual support <br>           in the record.  If so, we must probe the <br>           degree of the departure in order to verify <br>           its reasonableness. <br> <br>United States v. Dethelefs, 123 F.3d 39, 43-44 (1st Cir. 1997).    <br>         Section 4A1.3 of the guidelines states that "[i]f <br>reliable information indicates that the CHC does not adequately <br>reflect the seriousness of the defendant's past criminal conduct <br>. . . the court may consider imposing a sentence departure from the <br>otherwise applicable guideline range."  In this case, the district <br>court concluded that "a CHC of 'I' seriously under-represent[ed] <br>the severity of [Cadavid]'s criminal record."  Thus, the reasons <br>the court announced, nearly parroting the language of the <br>guideline, are permissible and appropriate. <br>         Next, we turn to whether there is an adequate factual <br>foundation to support the departure.  The district court expounded <br>that even if it were to find merit in Cadavid's objections to the <br>battery and DUI convictions, it would depart upward to CHC II.  <br>This, as discussed above, is clearly within the province of the <br>court and supported by the record.  Since 1988, Cadavid has been a <br>frequent presence in our judicial system.  He has two DUI <br>convictions and one conviction each for disorderly intoxication, <br>battery, and narcotics offenses.  Moreover, at the time of <br>sentencing, Cadavid was incarcerated, serving a 108-month federal  <br>sentence for narcotics trafficking.  Given this relatively recent <br>yet quite extensive illicit background, we find the district court <br>correctly concluded that CHC I severely under-represented Cadavid's <br>past illegal conduct. <br>         Finally, we examine the reasonableness of the degree of <br>the departure.  "This third step involves what is quintessentially <br>a judgment call."  United States v. Daz-Villafae, 874 F.2d 43, 51 <br>(1st Cir. 1989).  "Since the trial judge is in the trenches and is <br>apt to be best informed about the offense and the offender, '[w]e <br>will not lightly disturb decisions . . . implicating degrees of <br>departure.'"  United States v. Ocasio, 914 F.2d 330, 336 (1st Cir. <br>1990)(citing Daz-Villafae, 874 F.2d at 50).  However, judicial <br>discretion in departure decisions is not unfettered.  See Ocasio, <br>914 F.2d at 336.  Congress has statutorily determined that circuit <br>courts are to consider the factors ordinarily examined in <br>sentencing decisions.  See 18 U.S.C.  3742(e)(3)(A).  Thus, we <br>"look not only to the particular circumstance warranting departure <br>in the first place, but to the overall aggregate of known <br>circumstances pertaining to the offense of conviction and to the <br>offender who committed it."  Ocasio, 914 F.2d at 337.  In the <br>instant case, we find that the degree of departure was reasonable <br>given Cadavid's felonious background, which is replete with <br>convictions.  In addition, the district court, in effect, imposed <br>a partially concurrent sentence pursuant to U.S.S.G.  5G1.3(c).  <br>This amply reduced the actual time Cadavid will serve.  The CHC <br>calculation and resultant sentence in this case are proportionate <br>to the criminal history. <br>         Moreover, the issue of whether a judgment of <br>"adjudication withheld" constitutes a predicate conviction under <br>the guidelines, has been decided by this Court.  In United States <br>v. Pierce, 60 F.3d 886 (1st Cir. 1995), we held that a prior <br>withheld adjudication in which the defendant pled nolo contendere <br>constituted a predicate conviction for purposes of the "career <br>offender" guideline.  U.S.S.G.  4B1.1.  Furthermore, U.S.S.G. <br> 4A1.2(f) provides that "[a] diversionary disposition resulting <br>from a finding or admission of guilt, or a plea of nolo contendere, <br>in a judicial proceeding is counted as a sentence under  4A1.1(c) <br>[the CHR Guideline] even if a conviction is not formally entered."  <br>The guidelines define a prior sentence as "any sentence previously <br>imposed upon adjudication of guilt, whether by guilty plea, trial, <br>or plea of nolo contendere, for conduct not part of the instant <br>offense."  U.S.S.G.  4A1.2(a)(1) (1997).  Thus, we find that the <br>district court's calculation of criminal history points based upon <br>Cadavid's 1990 battery conviction was correct. <br>         Combining the criminal history point from Cadavid's 1990 <br>battery conviction with the criminal history point to which Cadavid <br>has conceded for DUI puts his CHC at II.  Therefore, we need not <br>explore whether the district court considered his uncounseled 1991 <br>DUI conviction in calculating his CHC. <br>                               IX. <br>                     "Safety Valve" Provision <br>         The next issue we analyze is whether the district court <br>committed clear error in determining that Cadavid failed to meet <br>the requirements of the "safety valve" provision in U.S.S.G. <br> 5C1.2 and 2D1.1(b)(4).  In order to qualify for relief under the <br>"safety valve" provision of the Sentencing Guidelines, a defendant <br>must satisfy the following five criteria: (1) not have more than <br>one criminal history point; (2) not have used violence or possessed <br>a firearm during commission of the offense; (3) not have killed or <br>seriously injured another person; (4) not have been a leader or <br>manager in the offense; and (5) have truthfully provided the <br>government with all information and evidence he possesses <br>concerning the offense.  See U.S.S.G.  5C1.2 (1997).  The burden <br>is upon the defendant to convince the court that he meets the <br>requirements.  See United States v. Montaez, 82 F.3d 520, 523 (1st <br>Cir. 1996) (citing United States v. Thompson, 81 F.3d 877, 880 (9th <br>Cir. 1996) (stating that "it is the court, and not the Government, <br>that determines whether a defendant qualifies for relief under <br> 5C1.2")).  We review district court factual determinations of <br>entitlement to relief under U.S.S.G.  2D1.1(b)(4) and 5C1.2 for <br>clear error.  See United States v. White, 119 F.3d 70, 73 n.6 (1st <br>Cir. 1997) (citing United States v. Miranda-Santiago, 96 F.3d 517, <br>527 (1st Cir. 1996)). <br>         The district court found that Cadavid failed to meet two <br>of the five requirements for "safety valve" qualification: Having <br>no more than one criminal history point and being a supervisor or <br>manager of the criminal enterprise.  Cadavid challenges both <br>findings and also asserts that the court's determination of the <br>last criteria, the issue of whether defendant had truthfully <br>provided the government with all information relating to the <br>offense, was clouded by the earlier findings on the other criteria. <br>         We find the district court was not clearly erroneous in <br>concluding that Cadavid failed to meet the requisites under the <br>Guidelines.  First, as discussed previously, we find that Cadavid <br>fails both the criminal history point and supervisor or manager <br>requirements.  Cadavid has failed to carry his burden in convincing <br>the court that he qualifies for the safety valve provision.  In <br>this case, the government noted a number of deficiencies in <br>Cadavid's written proffer and the court found that his submission <br>"came nowhere near satisfying the requirements of the safety valve <br>provision."  The Judge continued, "I think he has withheld instead <br>of being fully candid with the Court as well as with the Government <br>in what he has filed in this case."  "Full disclosure is the price <br>that Congress has attached to relief under the statute."  Montaez, <br>82 F.3d at 523 (citing United States v. Flanagan, 80 F.3d 143, <br>146-47 (5th Cir. 1996)).  Cadavid's submission fails to meet the <br>standard. <br>                                X. <br>                   Refusal to Downwardly Depart <br>         Our final determination is whether the district court <br>improperly refused to depart downward from the otherwise applicable <br>guideline sentencing range.  The government asserts that the <br>district court's refusal to downwardly depart is not reviewable. <br>         Cadavid asserted five separate grounds allegedly <br>justifying a downward departure: (1) a physical injury sustained <br>while in prison; (2) his agreement to be deported; (3) that his <br>criminal history constituted aberrant behavior; (4) that his <br>criminal history was overstated; and (5) a catch-all totality of <br>the circumstances category. <br>         The rule of this Circuit is that "a criminal defendant <br>cannot ground an appeal on a sentencing court's discretionary <br>decision not to depart below the guideline sentencing range." <br>United States v. Robbio, No. 98-1785, 1999 WL 551045 at *6 (1st <br>Cir. Aug. 2, 1999) (citing United States v. Reeder, 170 F.3d 93, <br>109 (1st Cir. 1999)).  Review of the sentencing hearing memorandum <br>and transcript convince us that the district court fully <br>comprehended its authority to depart downward in an appropriate <br>case, but denied Cadavid's motion because of its perceived lack of <br>merit.  Because Cadavid challenges the district court's exercise of <br>discretion not to depart downward, we do not have jurisdiction to <br>entertain his argument.  See United States v. Field, 39 F.3d 15, 21 <br>(1st Cir. 1994).  Furthermore, the lion's share of Cadavid's <br>current arguments for a downward departure is based on grounds he <br>did not raise in the district court, a fact that further forecloses <br>our consideration of those grounds.  See id.

                               XI. <br>                            Conclusion <br>         In accordance with the foregoing, we AFFIRM the district <br>court's sentence calculation.</pre>

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