      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                     For the First Circuit


No. 00-2278

                         UNITED STATES,

                           Appellee,

                               v.

                        CARLOS M. TOBON,

                     Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

      [Hon. George A. O’Toole, Jr., U.S. District Judge]


                             Before

                       Boudin, Chief Judge,
              Torruella and Lynch, Circuit Judges.




     Eileen M. Donoghue on brief for appellant.
     Donald K. Stern, United States Attorney, and Michael D.
Ricciuti, Assistant U.S. Attorney, on Motion for Summary
Disposition for appellee.




                         July 20, 2001
          Per Curiam. Carlos Tobon appeals his 210-month

sentence imposed following his plea of guilty to charges of

conspiracy to possess with intent to distribute cocaine and

attempted possession with intent to distribute cocaine, in

violation of 21 U.S.C. § 846, and aiding and abetting, 18

U.S.C. § 2.    Tobon argues on appeal that he should have

received a downward departure from the applicable sentencing

guidelines range and that the district court clearly erred

in imposing sentencing enhancements for being a leader or

organizer of the conspiracy, pursuant to U.S.S.G. § 3B1.1(c),

and for obstruction of justice pursuant to U.S.S.G. § 3C1.1.

The government has filed a Motion for Summary Disposition,

pursuant to Loc. R. 27(c).

          In support of his argument that he is entitled to

a downward departure, Tobon contends that the government used

an   artificially   beneficial   term   in   the   proposed   drug

transaction-- that the drugs could be delivered upon the

signing of a promissory note in lieu of a cash down payment.

Tobon argues that the government had at first insisted on a

reasonable down payment, but changed the condition in order

to ensure that the reverse-sting operation would succeed when

the defendants could not obtain the requisite cash.      He notes



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that the guidelines, specifically U.S.S.G. § 2D1.1, comment.

(n.15), contemplate a departure from the otherwise applicable

sentencing guidelines range when the government has set an

artificially low price in a reverse sting operation that

induces a defendant to purchase a larger quantity of drugs

than he would otherwise have obtained.

          “Generally, an appellate court lacks jurisdiction

to review a sentencing court’s discretionary decision not to

depart below the guideline sentencing range.           An exception

to this general rule applies when the sentencing court’s

decision not to depart is based upon its belief that it lacks

the authority or power to depart.”         United States v. Mangos,

134 F.3d 460, 465 (1st Cir. 1998) (citations omitted).

          The exception does not apply here.         Nothing in the

record indicates that the district court believed it lacked

authority to depart downward in this case.             Instead, the

record indicates that the district court understood that it

had   authority   to   depart   pursuant    to   U.S.S.G.   §   2D1.1,

comment. (n.15), but that it exercised its discretion in

declining to make such a departure.         We lack jurisdiction to

review this claim.     See United States v. Baltas, 236 F.3d 27,

40 (1st Cir.),    cert. denied, 121 S.Ct. 1982 (2001).




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              Tobon argues that the district court clearly erred

in attributing a leadership role to him, contending that he

was no more culpable than his co-defendant Agudelo, who

actually negotiated and met with the government agents.

              The guidelines provide for at least a two-level

aggravating         role   enhancement       if    a     defendant      “was     an

organizer,      leader,        manager,    or     supervisor.”          U.S.S.G.

§ 3B1.1(c). Factors the court should consider include, among

others, the exercise of decision making authority and the

recruitment of accomplices. U.S.S.G. § 3B1.1, comment (n.4).

There can be more than one person who qualifies as a leader

or   organizer       of    a   criminal     association        or     conspiracy.

U.S.S.G. § 3B1.1, comment. (n.4).                  We review role-in-the-

offense determinations, steeped in the facts of the case,

under    a    clearly-erroneous       standard.              United    States   v.

Cadavid, 192 F.3d 230, 237 (1st Cir. 1999).

              The district court adopted the factual statements

from    the   PSR     detailing    that     Tobon      recruited       Velez    and

Agudelo, paid for their hotel room, and directed Agudelo in

his dealings with the agents for the purchase of the 50

kilograms      of    cocaine.       Tobon    did       not    object    to   these

assertions in the PSR, and he is therefore foreclosed from

contesting them on appeal.            See United States v. Morillo, 8


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F.3d 864, 872-73 (1st Cir. 1993) (“A defendant who accepts

the probation department’s configuration of the sentencing

record without contesting the facts set forth in the PSI

Report can scarcely be heard to complain when the sentencing

court uses those facts in making its findings”).                    On these

facts, we conclude that the district court did not clearly

err in applying the leadership enhancement.

            Tobon argues, for the first time on appeal, that

Agudelo and Velez’s statements that they were recruited by

Tobon     are    untrustworthy,        as    Agudelo       and   Velez    were

cooperating          defendants,      and    their     statements         were

uncorroborated.         We review arguments not raised below only

for plain error.        United States v. Rivera-Ruiz, 244 F.3d 263,

272 (1st Cir. 2001).          We find no plain error in the district

court’s decision to credit Velez’s and Agudelo’s statements

that they were recruited by Tobon.

            Tobon received a two-level enhancement to his base

offense     level     for     obstruction    of    justice,      pursuant   to

U.S.S.G. § 3C1.1 based upon the district court’s finding that

Tobon threatened his co-defendant Paola Velez.                   Tobon argues

for   the   first      time    on   appeal   that    the    district     court

erroneously relied upon insufficient evidence, namely, the

statement       of   another     individual       charged    with   a    crime


                                      -5-
contained within an FBI report.      Tobon fails to acknowledge,

however, that in addition to providing the court with the FBI

report, the government had the witness whose statement was

memorialized in the report available to testify at sentencing

as to the threats Tobon asked her to convey to Velez.        The

government proffered what the witness would testify to, and

Tobon did not object to this recitation, or even request that

the witness actually testify.

            Arguments not seasonably addressed to the trial

court may not be raised for the first time in an appellate

context.    United States v. Graciana, 61 F.3d 70, 76 (1st Cir.

1995).     Even if this court were to review Tobon’s argument

for plain error, see Rivera-Ruiz, 244 F.3d at 272 (reviewing

objections not made at the time of sentencing for plain

error), the claim fails.      A sentencing court may rely upon

hearsay    evidence   to   justify   an   obstruction-of-justice

enhancement, so long as it appears reliable.         See United

States v. Aymelek, 926 F.2d 64, 68 (1st Cir. 1991).      In this

case, the statement has reasonable indicia of reliability,

as it was corroborated by Velez’s report that she had been

told about Tobon’s threats and by Velez’s actions in twice

seeking to relocate out of fear for her safety.




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            Accordingly, the district court did not plainly err

in relying upon the FBI report or the government’s proffer

in making its factual finding that Tobon had threatened

Velez.     Furthermore, we see nothing confusing or ambiguous

about the alleged threat.

            The Government’s Motion for Summary Disposition is

granted.    Tobon’s sentence is affirmed.   See Loc. R. 27(c).




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