                   Not For Publication in West's Federal Reporter

             United States Court of Appeals
                           For the First Circuit


No. 06-1876

                                UNITED STATES,

                                   Appellee,

                                        v.

                             RAÚL BÁEZ DE JESÚS,

                           Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF PUERTO RICO

           [Hon. Juan M. Pérez-Gímenez, U.S. District Judge]


                                     Before

                       Torruella, Circuit Judge,
                         Lynch, Circuit Judge,
                 and DiClerico, Jr.,* District Judge.



     Rafael F. Castro Lang for appellant.
     Germán A. Rieckehoff, Assistant United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, for appellee.



                                  May 1, 2007




     *
         Of the District of New Hampshire, sitting by designation.
          DICLERICO, District Judge.      On Christmas Eve of 2004,

Raúl Báez De Jesús was arrested with Christian Sánchez when they

were intercepted while navigating a boat carrying cocaine from St.

Thomas to Puerto Rico.    Báez and Sánchez were indicted for aiding

and abetting each other to distribute 220 kilograms of cocaine and

for illegally importing cocaine into the United States.        Báez pled

guilty on July 5, 2005.      He appeals from his sentence of 135

months’ imprisonment on the ground that the district court erred in

denying his request for a downward departure.          For the following

reasons, we dismiss the appeal for lack of jurisdiction.

          On   appeal,    Báez   argues   that   the    District   Court

erroneously failed to recognize that the government’s conduct in

revealing Báez as the source of certain statements against his co-

conspirators, who are charged in a separate action, constituted

grounds for a downward departure under either U.S.S.G. § 5K2.0 or

18 U.S.C. § 3553.1       Importantly, Báez does not challenge the

reasonableness of his sentence under United States v. Booker, 543

U.S. 220 (2005).   Cf., e.g., United States v. Martínez-Vives, 475




     1
      Although Báez cites § 3553 in his appellate brief, he makes
no developed argument under any provision of that statute, and
instead relies on § 5K2.0.     During the sentencing proceeding,
however, Báez did not raise § 5K2.0 and instead relied on § 3553.
Generally, arguments not raised below are reviewed only for plain
error. United States v. Milkiewicz, 470 F.3d 390, 401 (1st Cir.
2006). Because we conclude that jurisdiction is lacking to review
Báez’s claim on appeal, the standard of review is not an issue in
this case.

                                  -2-
F.3d 48, 54 (1st Cir. 2007) (“Martínez challenges his 33-month

sentence as unreasonable.”).

              A sentencing court’s denial of a downward departure is

discretionary and unreviewable unless the court refuses the request

based “on a view that it lacks legal authority to consider a

departure or . . . base[d] . . . on an error of law.”                    United

States   v.    Meléndez-Torres,   420   F.3d   45,    50   (1st   Cir.   2005).

Neither exception occurred in this case.

              Báez contends that certain statements made during the

sentencing      proceeding   demonstrate   that      the    sentencing   court

believed it lacked authority to grant a downward departure based on

the government’s disclosure to Báez’s co-conspirators that he was

the source of statements made against them.2               Specifically, Báez

cites the court’s response to defense counsel’s question during the

following exchange:

              [DEFENSE COUNSEL]:      Your Honor, if they
              weren’t using him as a witness, if they
              weren’t giving him the benefit of cooperation,
              then we can see no other reason why his
              statement would be provided to defense counsel
              [in the co-conspirators’ case] other than to
              lead defense counsel in that case to induce
              their clients to plead guilty because this
              defendant would be available to testify
              against them; when now the government says
              that it won’t be using my client as a witness.

              THE COURT: They don’t say it now. They have
              always said it from day one. In my case, in


     2
      Defense counsel also argued a variety of other grounds for
downward departure that are not at issue on appeal.

                                    -3-
          this case, they’ve said that they are not
          going to use it in the other case.

          [DEFENSE COUNSEL]: Then why was a statement,
          Your Honor, provided in Criminal Case 05-302?

          THE COURT:      You will have to ask the
          government.    But that’s an issue that has
          nothing to do with sentencing in this case.
          Anything else?

Sentencing Hr’g Tr. 43-44, Apr. 26, 2006. When defense counsel

continued to argue that the government was benefitting from the use

of Báez’s statement in his co-conspirators’ case and that defense

counsel had not been told that Báez would not be a witness in that

case, the court responded:

          I’m sure they have, because [Government
          Counsel] are not going to come here as
          officers of the court and state to me that
          they are not going to be using it. And they
          have been stating it since day one, since the
          first time we asked them, and then go around
          and go over to [the judge in the other case]
          and defense counsel and tell them we’re going
          to   use  [Báez]   as   a  witness,   because
          [Government Counsel] would get into a lot of
          trouble.

          Counsel, I told you that was a good faith
          mistake, that they turned it over.        And
          [Government Counsel] explained it to you and
          to me a long time ago, that it was a mistake,
          they are sorry for it, that they should have
          not done it.

Id. at 47. Government counsel agreed that the government had

informed the judge and defense counsel in the other case that Báez

would not be a witness in that case and also noted that none of the

defendants in the other case had entered guilty pleas.


                               -4-
          Taken in context, the sentencing court’s statements show

it found that the government’s disclosure of Báez’s statement did

not constitute misconduct which could affect Báez’s sentencing.

See United States v. Snyder, 235 F.3d 42, 50 n.8 (1st Cir. 2000)

(“[G]overnment misconduct may serve as a ground for departure, but

only if relevant in some particular way to sentencing.”).              We

conclude from our review of the record in this case that the

sentencing court was aware of its authority to depart based on

government misconduct, but in the exercise of its discretion, the

court declined to do so under the circumstances as it found them to

be. Therefore, we lack jurisdiction to review the district court’s

discretionary   decision   denying   Báez’s   request   for   a   downward

departure.   Meléndez-Torres, 420 F.3d at 51.

          The appeal is dismissed.




                                 -5-
