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<pre>                 United States Court of Appeals<br>                     For the First Circuit<br><br><br><br><br><br>No. 98-1643<br><br>                    UNITED STATES OF AMERICA,<br><br>                       Plaintiff, Appellee,<br><br>                                v.<br><br>                    RAYMOND HERNANDEZ-ALBINO,<br><br>                      Defendant, Appellant.<br><br><br><br>           APPEAL FROM THE UNITED STATES DISTRICT COURT<br><br>                 FOR THE DISTRICT OF PUERTO RICO<br><br>          [Hon. Hector M. Laffitte, U.S. District Judge]<br><br><br><br>                              Before<br><br>                     Torruella, Chief Judge,<br>                 Coffin, Senior Circuit Judge,<br>                   and Selya, Circuit Judge.<br>                                <br>                                <br>                                <br>                                <br>     Peter Goldberger with whom Pamela A. Wilk was on brief for<br>appellant.<br>     Camille Velez-Rive, Assistant United States Attorney, with<br>whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,<br>Assistant United States Attorney, and John Teakell, Assistant<br>United States Attorney, were on brief for appellee.<br><br><br><br><br><br>May 20, 1999<br><br><br><br>                                <br>                                <br><br>

  COFFIN, Senior Circuit Judge.  The government arrested<br>defendant-appellant Raymond Hernndez Albino ("Hernndez") and<br>several other men in a drug sting in Arecibo, Puerto Rico. <br>Hernndez was indicted, tried, convicted and sentenced.  On appeal,<br>he argues that the court made a series of mistakes both during<br>trial and at sentencing.  We are unpersuaded by his claims of error<br>and affirm.<br>                          I. Background<br>  Testimony at trial revealed the following: On April 17,<br>1997, two government informants contacted Armando Cabrera Vargas<br>("Cabrera") regarding the sale of a number of kilograms of cocaine. <br>Cabrera, in turn, went to see Orlando Ramirez Ortiz ("Ramirez"),<br>and introduced Ramirez to the government informants.  With Cabrera<br>acting as middleman, the parties agreed that Ramirez would purchase<br>seven kilograms of cocaine for $123,500.<br>  Ramirez's problem was that he did not actually have that<br>much money, so he approached his long-time friend Hernndez for a<br>loan for Ramirez's "business."  When Hernndez asked for more<br>details, Ramirez offered vague assurances that he was sure of what<br>he was doing and that the money would be repaid.  Although<br>Hernndez was reluctant to lend this sizeable amount of capital<br>without knowing the specifics of the business deal, he agreed to<br>the transaction after Ramirez pledged his house and business as<br>collateral.  On April 23, 1997, the day the drug deal was to take<br>place, Ramirez finally informed Hernndez that the money was being<br>used to purchase cocaine.  When pressed at trial by prosecutors,<br>Ramirez conceded that Hernndez, still unsure about whether the<br>transaction would be consummated, demanded to be present and carry<br>the money.<br>  When the time came, Ramirez called Hernndez and told him<br>to come to the back of the Villa Real Hotel, where the exchange was<br>to take place.  When Hernndez arrived in his Toyota 4Runner truck,<br>Ramirez got in and inspected the money, which was in a sports gear<br>bag.  At that moment, one of the informants selling the drugs<br>called Ramirez on his cellular phone and instructed Ramirez to<br>drive to the front of the hotel.  In front of the hotel the<br>informant approached Hernndez's truck, and told Hernndez and<br>Ramirez that "the Colombian" drug supplier (in reality an<br>undercover government agent named Roln) wanted to come check out<br>the money.  When Hernndez inquired, Ramirez explained that Roln<br>owned the cocaine.  Roln inspected the money and departed<br>allegedly to retrieve the drugs.  Instead, he gave other agents the<br>signal to arrest Hernndez and Ramirez.<br>  When Hernndez was arrested, agents discovered in his<br>waistband a concealed 9 millimeter handgun, which he had a valid<br>permit to carry.  The agents did not thoroughly search the vehicle<br>at the scene but during a later inventory search found a different<br>9 millimeter gun with an obliterated serial number under the front<br>passenger seat where Ramirez had been sitting.<br>  Hernandez was indicted on three counts: 1) conspiracy to<br>possess the seven kilograms of cocaine with the intent to<br>distribute; 2) carrying a firearm during and in relation to the<br>drug crime; and 3) possessing the gun with the obliterated serial<br>number.  Hernandez pled not guilty to all three charges.<br>  Ramirez and Cabrera were also indicted, but both pled<br>guilty and agreed to cooperate with the government in return for<br>the government's promise to recommend leniency in sentencing. <br>During a three day trial in mid-November 1997, the government<br>called Ramirez as a witness.  While Ramirez was on the stand, the<br>court found him at times reluctant to testify and unresponsive to<br>the government's questions, so it permitted the prosecutors to ask<br>certain leading questions.<br>  The case was eventually sent to the jury, and it began<br>deliberating.  Approximately two and one half hours later, the jury<br>sent a note to the judge saying that "[t]he jury has not been able<br>to come to a guilty or not guilty verdict.  We are at an impasse." <br>The judge consulted with counsel, and sent the following response,<br>to which counsel did not object:<br>    All of you are equally honest and<br>  conscientious jurors who have heard the same<br>  evidence.  All of you share an equal desire to<br>  arrive at a verdict.  Each of you should ask<br>  yourself whether you should question the<br>  correctness of your present position.  I<br>  remind you that in your deliberations you are<br>  to consider the instructions as a whole. <br>  Please continue the deliberations.<br><br>After deliberating for another hour, the jury found Hernndez<br>guilty of both count 1, conspiracy to possess cocaine with the<br>intent to distribute, and count 2, possession of a gun during and<br>in relation to a drug crime, but acquitted him on count 3,<br>possession of the gun found under Ramirez's seat.<br>  Hernndez was subsequently sentenced to 181 months of<br>imprisonment to be followed by five years of supervised release,<br>and a special assessment of $200.  This appeal ensued.<br>                          II. Discussion<br>  Hernndez argues that his conviction and sentence were<br>improper due to a number of alleged errors.  While none of his<br>claims is meritorious, three are worthy of developed consideration.<br>A. The court's supplemental charge<br>  Hernndez claims that the court erred when it responded<br>to the jury's impasse with the supplemental jury instruction, often<br>described as a "dynamite" charge or an Allen charge, after Allen v.<br>United States, 164 U.S. 492 (1896).  Counsel did not object at the<br>time, and hence we review only for plain error.  See Fed. R. Crim.<br>P. 52(b); United States v. Bradstreet, 135 F.3d 46, 50 (1st Cir.<br>1998).<br>  Plain error analysis requires four steps.  First, an<br>error must have been committed.  United States v. Olano, 507 U.S.<br>725, 732-33 (1993).  Second, the error must be plain or obvious. <br>Id. at 734.  Third, the plain error must "affect[] substantial<br>rights," Fed. R. Crim. P. 52(b), which generally means that it must<br>have been prejudicial, see Olano, 507 U.S. at 734.  Finally,<br>because Rule 52(b) is discretionary, we must be convinced that the<br>error "'seriously affect[s] the fairness, integrity or public<br>reputation of judicial proceedings[]'" before we will order a new<br>trial.  Id. at 736 (quoting United States v. Atkinson, 297 U.S.<br>157, 160 (1936)).<br>  i. The Error.  Any supplemental instruction in response<br>to a jury's deadlock can have a significant coercive effect by<br>intimating that some jury members should capitulate to others'<br>views, or by suggesting that the members should compromise their<br>rational positions in order to reach an agreement.  See United<br>States v. Angiulo, 485 F.2d 37, 39 (1st Cir. 1973).  Although<br>federal courts have long sanctioned the use of supplemental charges<br>in the face of an apparent impasse, see Lowenfield v. Phelps, 484<br>U.S. 231, 237 (1988), we have warned that such action should be<br>undertaken with "great caution and only when absolutely necessary,"<br>United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971).  <br>  Concerned about the instruction's potentially coercive<br>effect, we have required that it contain three specific elements to<br>moderate any prejudice.  See United States v. Paniagua-Ramos, 135<br>F.3d 193, 197 (1st Cir. 1998).  First, in order that the burden of<br>reconsideration is not shouldered exclusively by those jury members<br>holding the minority view, the court should expressly instruct both<br>the minority and the majority to reexamine their positions.  See<br>Angiulo, 485 F.2d at 39.  Second, the instruction should<br>acknowledge that the jury has the right not to agree.  See Jenkins<br>v. United States, 380 U.S. 445, 446 (1965) (per curiam).  Third,<br>the court should remind the jury that the burden of proving guilt<br>beyond a reasonable doubt remains, as always, with the government. <br>See Paniagua-Ramos, 135 F.3d at 197.<br>  The charge at issue did not meet these criteria.  While<br>it could be argued that the first element was satisfied because<br>each person was instructed to question the correctness of his or<br>her position, the instruction did not address either of the other<br>two requirements in any manner whatsoever.  Although we have<br>consistently refrained from offering any definite wording for an<br>Allen charge, the instruction should have referenced in some way<br>all three essential elements.  The court's failure to do so was<br>error.<br>  The government presents a somewhat tautological argument<br>in response.  It claims that the omission of two elements was not<br>erroneous because the instruction was not an Allen charge, and it<br>was not an Allen charge because it did not follow the accepted<br>format, i.e., it did not contain all three elements.  In addition<br>to protecting any supplemental instruction such as this one from<br>judicial review for consistency with the three Allen criteria, the<br>government's argument ignores our explicit ruling that "any<br>supplemental instruction which urges the jury to return to its<br>deliberations must include the three balancing elements stated<br>above."  Angiulo, 485 F.2d at 40 (emphasis added).<br>  ii. The Clarity of the Error.  It is equally obvious that<br>the second requirement, i.e., that the error is clear, has also<br>been met.  We first discussed the three elements in Flannery in<br>1971, and have followed them with unwavering devotion ever since. <br>We have addressed them on a number of occasions, even describing<br>them as "essential," United States v. Vachon, 869 F.2d 653, 659<br>(1st Cir. 1989).  The district court's failure to mention either of<br>the last two elements constituted plain error.<br>  iii. Affecting substantial rights.  Although the error<br>was plain, we may not reverse Hernndez's conviction and order a<br>new trial unless the error "affect[ed] substantial rights."  Fed.<br>R. Crim. P. 52(b).  In a challenge to an improper Allen charge, the<br>relevant inquiry revolves around whether the charge "in its context<br>and under all the circumstances" coerced the jury into convicting<br>him.  Lowenfield, 484 U.S. at 237.  Hernndez's counsel below<br>admitted that the charge was "not coercive in the least."  We<br>agree, based on both the length of deliberations after the Allen<br>charge and the verdict's internal consistency.  See United States<br>v. Plunk, 153 F.3d 1011, 1027 (9th Cir. 1998); Paniagua-Ramos, 135<br>F.3d at 199.<br>  The length of deliberations in this case negates any<br>suggestion of coercion.  The jury's task was relatively<br>straightforward.  The government claimed Hernndez joined Cabrera's<br>and Ramirez's drug conspiracy because Hernndez lent Ramirez the<br>money after learning that it would be used to purchase drugs. <br>Hernndez's defense was that he was "merely present" when the drug<br>deal occurred.  Deciding which version of events to believe was a<br>relatively uncomplicated exercise.  It appears that the jury<br>recognized as much and seemed to expect that deliberations would be<br>swift: they complained of an impasse after deliberating for only<br>two and one half hours.  After the judge sent the written<br>supplemental instruction, the jury deliberated for another hour.  <br>  Numerous courts have found no coercion under similar<br>circumstances.  See Green v. French, 143 F.3d 865, 886 (4th Cir.<br>1998) (concluding that a one hour deliberation after a supplemental<br>Allen instruction failed to suggest coercion);  United States v.<br>Hernandez, 105 F.3d 1330, 1334 (9th Cir. 1997) (stating that<br>deliberations of 40 minutes after Allen charge did not "raise the<br>specter of coercion"); United States v. Smith, 635 F.2d 716, 721-22<br>(8th Cir. 1980) (finding no coercion when jury deliberated forty-<br>five minutes after Allen charge, in addition to previous three hour<br>total deliberations).  We note, however, that these cases do not<br>establish a formula, but rather are illustrative of the principle<br>that sufficient additional time can help to establish an absence of<br>coercion.  That principle is particularly applicable in this case,<br>where the total time of deliberation was roughly 3 hours, of which<br>the deliberations after the Allen charge represented almost one<br>third.<br>  The other relevant circumstance in this case, namely, the<br>verdict's internal consistency, also implies an absence of<br>coercion.  As noted earlier, Hernndez was convicted of conspiring<br>to possess cocaine with the intent to distribute.  He was also<br>convicted of possession of a gun, either the one on his person or<br>the one under Ramirez's seat, during and in relation to the drug<br>crime.  Finally, he was acquitted of possessing the gun with an<br>obliterated serial number which was found underneath Ramirez's<br>seat.  The jury's verdict indicates that it found Hernndez guilty<br>of the drug crime and of possession of his own gun, but rejected<br>the government's argument that he constructively possessed the<br>firearm under Ramirez's seat.  The internal consistency of this<br>result suggests a nuanced analysis and reasoned decision.  See<br>Plunk, 153 F.3d at 1027 (concluding that "the fact that the jury<br>rendered a mixed verdict [on independent counts] . . . suggests<br>that it reviewed the evidence rationally and independently"); cf.<br>Paniagua-Ramos, 135 F.3d at 199 (finding confusion when jury<br>convicted defendant of conspiracy but acquitted him on the<br>underlying substantive charge, because evidence suggested defendant<br>was either innocent of both or guilty of both).  <br>  Because the jury was not coerced, the court's error did<br>not affect Hernndez's substantial rights, and we will not reverse<br>his conviction due to the erroneous Allen charge.<br>B. Carrying a gun "during and in relation to" a drug crime<br>  Hernndez challenges two related aspects of the jury<br>instructions on count two, namely, the failure to give a specific<br>unanimity charge on which gun was carried, and the omission of the<br>words "knowing" and "in relation to" from certain portions of the<br>instructions.<br>  i. Unanimity on which gun was carried.  Hernndez claims<br>that the court committed plain error because the jury was not<br>instructed that it had to agree which gun Hernndez carried before<br>he could be convicted.  Raised for the first time on appeal, this<br>claim is also reviewed for plain error.<br>  In this case no error was committed.  The court was not<br>required to give a specific unanimity instruction because the jury,<br>in fact, was not required to agree on the specific gun carried. <br>Although Federal Rule of Criminal Procedure 31(a) requires that a<br>criminal conviction be unanimous, the jury need not necessarily<br>agree on the facts underlying that conviction.  See United States<br>v. Tarvers, 833 F.2d 1068, 1074 (1st Cir. 1987) (unanimity<br>generally not required with respect to a specific act underlying an<br>element of a charged offense).  When the government alleges in a<br>single count that the defendant committed the offense by one or<br>more specified means, the Supreme Court has "never suggested that<br>in returning general verdicts in such cases the jurors should be<br>required to agree on a single means of commission, any more than<br>the indictments were required to specify one alone."  Schad v.<br>Arizona, 501 U.S. 624, 631 (1991); see also United States v.<br>Reeder, 170 F.3d 93, 105 (1st Cir. 1999) (noting that the jury must<br>agree that the government has proven all the elements of an offense<br>beyond a reasonable doubt, but "it need not agree on the means by<br>which all the elements were accomplished").<br>  Although unanimity is required when such a determination<br>matters for sentencing purposes, see United States v. Melvin, 27<br>F.3d 710, 715 (1st Cir. 1994) (finding enhanced mandatory sentence<br>resulting from one particular firearm not supportable when the jury<br>might have concluded that defendant possessed a different firearm<br>not subject to the enhancement), the jury need not reach unanimous<br>agreement on the identity of the weapon when the defendant is<br>charged with violating  924(c) due to possession of more than one<br>firearm and none of the weapons justifies more than the statutory<br>minimum sentence.  See United States v. Correa-Ventura, 6 F.3d<br>1070, 1075-87 (5th Cir. 1993) (concluding that specific unanimity<br>was not required when  924(c) conviction could have been based on<br>any one of ten weapons seized).<br>  ii. Omission of "knowing" and "in relation to" during<br>instructions.  Next, Hernndez argues that the court committed<br>plain error by omitting both "knowing" and "in relation to" from<br>the instructions.  He argues that his licensed pistol had no<br>relationship to the drug offense and that he did not knowingly<br>carry the weapon found under Ramirez's seat.  Consequently, the<br>instructions allowed the jury to convict him either for his routine<br>possession of a concealed weapon as authorized by his permit or<br>without knowing the gun was under Ramirez's seat.<br>  The court instructed the jury as follows:<br>    Now, Count Two of the indictment charges the<br>  defendant with carrying a pistol or firearm<br>  during and in relation to a drug trafficking<br>  transaction. <br>    . . . <br>    Now, two essential elements are required to be<br>  proved beyond a reasonable doubt in order to<br>  establish the offense charged in Count Two of<br>  the indictment.  And these are as follows:<br>  First, that the defendant committed a drug<br>  trafficking crime for which he may be<br>  prosecuted in a court of the United States. <br>  And second, that during the commission of that<br>  crime, the defendant carried a firearm.<br><br>    The fact that a person may have a permit to<br>  carry a weapon is irrelevant in this matter. <br>  The issue is whether the firearm was carried<br>  during and in relation to the commission of<br>  the crime.<br><br>Hernndez's counsel failed to object to this instruction, and it is<br>also reviewed for plain error.  <br>  When presented with a strikingly similar situation in<br>United States v. Luciano-Mosquera, 63 F.3d 1142, 1156 (1st Cir.<br>1995), we found that the omission of "in relation to" did not<br>constitute plain error.  However, Hernndez argues that Luciano-<br>Mosquera was decided before the Supreme Court's decision in United<br>States v. Johnson, 520 U.S. 461 (1997), in which the Court found<br>the omission of an element of an offense to be plainly erroneous. <br>The government asserts, in response, that the court used the phrase<br>"in relation to" both before identifying the specific elements and<br>after, when it said that the "issue is whether the firearm was<br>carried during and in relation to the commission of the crime." <br>Rather than wade into the murky waters of defining the elements of<br>this crime, cf. United States v. Munoz, 143 F.3d 632, 637 (2d Cir.<br>1998) (discussing a challenge to "the 'in relation to' element of<br> 924(c)(1)"); United States v. Currier, 151 F.3d 39, 41 (1st Cir.<br>1997) (describing "during and in relation to" as a single element),<br>we will assume, arguendo, both that the court's failure to mention<br>it as a separate element was error and that the error was plain.<br>  Here again Hernndez has failed to meet his burden of<br>proving that his substantial rights were affected.  See Olano, 507<br>U.S. at 734 ("It is the defendant rather than the Government who<br>bears the burden of persuasion with respect to prejudice.").  To<br>demonstrate prejudice Hernndez must show that the court's omission<br>affected the outcome of the trial.  See id.  We are convinced that<br>the outcome was not affected, and the result would have been<br>precisely the same.  First, the jury found that he was an active<br>participant in the drug deal, and rejected his "mere presence"<br>defense.  Second, it was undisputed that he was carrying a<br>concealed weapon, albeit with a permit.  Third, apart from the<br>existence of the permit itself, there was no reason to believe that<br>the gun was not "in relation to" the drug crime.  The jury heard no<br>evidence that he routinely carried the gun for self-protection, or,<br>for that matter, that he had ever carried it on any other occasion. <br>Especially in light of the court's mentioning "in relation to"<br>earlier, and its final statement that the "issue is whether the<br>firearm was carried during and in relation to the commission of the<br>crime," Hernndez has failed to convince us that, had the court<br>repeated the "in relation to" requirement as a explicit element,<br>the jury would not have convicted him of possessing his weapon<br>during and in relation to the drug crime.<br>  He also claims that the court failed to include a<br>knowledge requirement in its instruction, and the jury therefore<br>could have convicted him of carrying the gun under Ramirez's seat<br>even though he was unaware of it.  The simple response to this<br>contention is that the statute does not include an explicit<br>knowledge requirement, undoubtedly because it would be redundant. <br>The statute applies an additional punishment for "any person who,<br>during and in relation to any crime of violence or drug trafficking<br>crime . . . uses or carries a firearm[.]"  18 U.S.C.  924(c)(1). <br>The fact that the gun is carried "in relation to" the drug crime<br>requires that the defendant have an identified reason for carrying<br>the weapon.  See Smith v. United States, 508 U.S. 223, 238 (1993)<br>("The phrase 'in relation to' thus, at a minimum, clarifies that<br>the firearm must have some purpose or effect with respect to the<br>drug trafficking crime;  its presence or involvement cannot be the<br>result of accident or coincidence.").  It is logically impossible<br>for an individual to carry something for a specified purpose<br>without knowingly carrying it.  See United States v. Padilla, 751<br>F. Supp. 761 (N.D. Ill. 1990) (noting that  924(c)(1)'s terms<br>"necessarily include a knowledge element").  If the jury found that<br>he had constructively carried the gun under Ramirez's seat "in<br>relation to" the drug transaction, by definition it determined that<br>he knowingly carried it.<br>C. Ramirez's leniency in return for cooperation<br>  Relying on United States v. Singleton, 144 F.3d 1343<br>(10th Cir. 1998) ("Singleton I"), Hernndez argues that his<br>conviction was improper because the government violated the anti-<br>bribery statute, 18 U.S.C.  201(c)(2), by promising something of<br>value to Ramirez, namely, a lenient sentence recommendation, in<br>return for his testimony against Hernndez.<br>  This argument was not raised in the district court, and<br>is subject to review only for plain error.  See Fed. R. Crim. P.<br>52(b).  "At a minimum, [a] court of appeals cannot correct an error<br>pursuant to Rule 52(b) unless the error is clear under current<br>law."  Olano, 507 U.S. at 734.<br>  At the time of Hernndez's conviction in November 1997,<br>no court had yet found a promise of leniency by the government in<br>return for cooperation to be a violation of the anti-bribery<br>statute.  Singleton I, issued the following year, was viewed as a<br>significant departure from existing precedent, was roundly<br>questioned, and was swiftly vacated and reversed en banc.  See<br>United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en<br>banc) ("Singleton II").  Every circuit and virtually every court<br>facing the issue has criticized Singleton I's reasoning.  See,<br>e.g., United States v. Condon, 170 F.3d. 687, 688-89 (7th Cir.<br>1999) United States v. Ramsey, 165 F.3d 980, 986 (D.C. Cir. 1999);<br>United States v. Lowery, 166 F.3d 1119, 1123 (11th Cir. 1999); but<br>see United States v. Fraguela, 1998 WL 560352 (E.D. La. Aug. 27,<br>1998), vacated on other grounds, 1998 WL 910219 (E.D. La. Oct. 7,<br>1998).  In light of the lack of any previous caselaw, and the<br>overwhelming condemnation of Singleton I, it is beyond question<br>that Singleton I's holding is not "clear under current law." <br>Consequently, the court did not commit plain error in admitting<br>Ramirez's testimony.

D. Other claims of error<br>  Hernndez presents four other bases on which we might<br>rule that his conviction and sentence were improper.  Because we<br>are entirely unpersuaded by these other arguments, we decline to<br>address any of them in more than a brief comment.<br>  Hernndez posits that the district court improperly<br>denied his motion to suppress the 9 millimeter gun found under the<br>passenger seat.  Warrantless inventory searches must be conducted<br>according to standardized procedures.  See United States v.<br>Infante-Ruiz, 13 F.3d 498, 503 (1st Cir. 1994).  The court found<br>that the government followed official Drug Enforcement<br>Administration policy in this case, and that finding is not clearly<br>erroneous, see United States v. Zapata, 18 F.3d 971, 975 (1st Cir.<br>1994).  Therefore the search and seizure of the gun were lawful.  <br>  He also argues that the trial court permitted the<br>government to pose leading questions and to impeach Ramirez<br>improperly.  The court's rulings in this area are reviewed for<br>abuse of discretion.  See United States v. Mulinelli-Navas, 111<br>F.3d 983, 990 (1st Cir. 1997).   A review of the transcript reveals<br>that, at times, Ramirez was unresponsive or showed a lack of<br>understanding.  The court was well within the bounds of its<br>discretion in permitting the government to clarify his testimony by<br>leading Ramirez and, when appropriate, impeaching him.<br>  Hernndez suggests that for sentencing purposes the<br>government did not prove by a preponderance of the evidence that he<br>knew the type or quantity of drugs involved.   Although Ramirez<br>initially denied mentioning the drug involved, he eventually<br>admitted that, on the day the deal was to take place, he told<br>Hernndez that the money would be used to purchase cocaine.  While<br>there was equivocal evidence about whether Ramirez told Hernndez<br>about the quantity, the court ruled that Hernndez knew or<br>reasonably could have foreseen that the $123,500 loan would<br>purchase more than five kilograms.  This finding cannot be<br>described as clearly erroneous.  See United States v.<br>Miranda-Santiago, 96 F.3d 517, 524 (1st Cir. 1996).<br>  Finally, claiming that his actions constituted aberrant<br>behavior, Hernndez moved for a downward departure.  The court<br>refused to grant Hernndez's motion, stating that merely because<br>"[g]ood people do bad things" "doesn't mean that those [actions]<br>are aberrant behaviors."  Unless the district court misapprehends<br>the guidelines or misconstrues its authority to depart, we do not<br>have jurisdiction to review discretionary decisions not to depart<br>from sentences imposed under the Guidelines.  See United States v.<br>Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996).  The district court<br>neither misapprehended the guidelines nor misconstrued its<br>authority; it simply found that such a departure was unwarranted. <br>We lack any authority to countermand its decision.<br>    Affirmed.</pre>

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