
USCA1 Opinion

	




                                 NOT FOR PUBLICATION                                 ___________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1527                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     OMIL ARROYO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                             Hill,* Senior Circuit Judge,                                    ____________________                         and Pollak,** Senior District Judge.                                       _____________________                                 ____________________            Stephen R. Kaplan, by Appointment of the Court, for appellant.            _________________            Margaret E.  Curran, Assistant United  States Attorney,  with whom            ___________________        Richard  W.  Rose,  Assistant  United  States  Attorney,  and  Sheldon        _________________                                              _______        Whitehouse,  United  States Attorney,  were  on brief  for  the United        __________        States.                                 ____________________                                  September 29, 1997                                 ____________________        _______________        *Of the Eleventh Circuit, sitting by designation.        **Of the Eastern District of Pennsylvania, sitting by designation.                 Per  Curiam.   Appellant Omil  Arroyo  was convicted  on                 ___________            charges of possession with intent to deliver 50 grams or more            of cocaine base and 500 grams or more of powdered cocaine, 21            U.S.C.   841(a)(1),   and sentenced to 151  months in prison,            the  low  end  of  the  range  determined  by the  Sentencing            Guidelines.   He  challenges both  the jury  verdict  and his            sentence,  beginning with a claim that there was insufficient            evidence to support the conviction.                     In reviewing a  verdict for evidentiary sufficiency,  we            resolve  all legitimate evidentiary conflicts in favor of the            verdict.  See United States v. Ruiz, 105 F.3d 1492, 1495 (1st                      ___ _____________    ____            Cir.  1997).  Arroyo's main insufficient-evidence argument is            that  there  was no  proof  that  he exercised  dominion  and            control over the  drugs in question.  However,  the drugs and            related paraphernalia were found  in Arroyo's apartment, some            in plain view.                 Although Arroyo and a defense witness testified that two            friends also lived in his apartment, the jury was entitled to            disbelieve this testimony  in light of Arroyo's  inability to            identify where these  friends worked or where  they had lived            before  moving in  with him.   The government's  evidence was            clearly "sufficient  to warrant a  jury to conclude  that the            defendant  is  guilty  beyond a  reasonable  doubt."   United                                                                   ______            States v. Paiva, 892 F.2d 148, 161 (1st Cir. 1989).            ______    _____                                         -2-                                         -2-                 Arroyo also attacks the Sentencing Guidelines' treatment            of  cocaine base  as 100  times  more serious  than an  equal            amount of powdered cocaine.  This Court has already  rejected            an  equal protection challenge  to the differential.   United                                                                   ______            States v. Singleterry, 29 F.3d 733, 740-41 (1st  Cir.), cert.            ______    ___________                                   _____            denied, 513 U.S.  1048 (1994).   Here, Arroyo simply  recasts            ______            the attack as a claim  that the differential should have been            treated as a ground for a downward departure.                 But  a  refusal  to depart  downward  is  not reviewable            unless  it  rests on  a  mistake  of  law, United  States  v.                                                       ______________            Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996), and Arroyo has            ___________            not  pointed to  any  misapprehension  of  authority  by  the            sentencing judge.   Further,  even if  the refusal  to depart            were reviewable, the use of  a 100-to-1 ratio is part of  the            guideline--not itself  an unusual  circumstance or  condition            that  might take the  case outside the  "heartland of typical            cases" envisioned  by the Sentencing Guidelines.  See Koon v.                                                              ___ ____            United States, 116 S. Ct. 2035, 2044 (1996).              _____________                 Finally,  Arroyo argues that the district court erred in            ruling  that  he was  not  eligible  for the  "safety  valve"            reduction provided by  U.S.S.G.   2D1.1(b)(4).   The district            court  concluded that Arroyo had not satisfied the conditions            of  this provision because he had  not truthfully provided to            the government all  of the information  he had pertaining  to                                         -3-                                         -3-            the offenses.   U.S.S.G.   5C1.2(5).  Arroyo  asserts that he            is innocent and thus had no information to provide.                   Arroyo had the  burden of convincing the  district court            that he qualified for the safety valve reduction.  See United                                                               ___ ______            States v.  Montanez, 82 F.3d  520, 523  (1st Cir. 1996).   We            ______     ________            review   only  for   clear   error   the   district   court's            determination   that  Arroyo  was  guilty  and  so  did  have            information  to  provide.    See United  States  v.  Miranda-                                         ___ ______________      ________            Santiago, 96 F.3d  517, 527 (1st  Cir. 1996).  Since  we have            ________            already  held that the  evidence was sufficient  to establish            guilt  beyond  a  reasonable  doubt,  obviously  the district            court's determination--based on a less demanding standard and            a reversal of the burden of proof--cannot be clear error.                   Affirmed.                 ________                                         -4-                                         -4-
