
USCA1 Opinion

	




        January 10, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1787                                     UNITED STATES,                                      Appellee,                                          v.                                   JOSE OMAR SANTA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Edward F. St. Onge on brief for appellant.            __________________            Sheldon Whitehouse,  United States  Attorney, and  Edwin J.  Gale,            __________________                                 ______________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   Defendant-appellant Jose  Omar Santa                      ___________            ("Santa") appeals  his sentence  on two grounds.   First,  he            objects to  the conversion  of money  found at  his apartment            into drug amounts  for the purposes  of calculating his  base            offense  level.   Second,  he contests  the district  court's            refusal  to depart  downward from  the guideline  sentence on            account of  defendant's status  as a deportable  alien, which            makes him ineligible  for assignment to low-security  prisons            or half-way houses.  We affirm.                                I.  Conversion of Cash                                    __________________                      The Commentary  to  Section  2D1.1  of  the  United            States Sentencing Guidelines provides  that drug amounts  not            specified in the  counts of conviction  may be considered  in            determining the  offense level.   See Comment  n. 12.   To be                                              ___            included, the drug amounts  must be "part of the  same course            of  conduct  or  common scheme  or  plan  as  the offense  of            conviction."   United States  v. Gerante,  891 F.2d  364, 369                           _____________     _______            (1st Cir.  1989).  The Guidelines permit the sentencing court            to treat cash as  the equivalent of an estimated  quantity of            drugs in arriving at a base offense level. Comment note 12 to              2D1.1 provides, in relevant part, as follows:                           Where there is no  drug seizure                           or the amount  seized does  not                           reflect   the   scale  of   the                           offense,   the   court    shall                           approximate the quantity of the                           controlled substance. In making                           this  determination,  the court                           may consider,  for example, the                                         -2-                           price  generally  obtained  for                           the controlled substance, . . .                      On appeal,  Santa argues that there  is no evidence            to support the government's  statement at sentencing that the            cash was wrapped  in tin foil and located under  the bed.  He            also argues that the cash "represented  the proceeds of sales            already  counted."   At  sentencing, however,  Santa did  not            object  to  the government's  account  of  the packaging  and            location of the cash.   Therefore, this objection may  not be            raised for the  first time on  appeal.  See United  States v.                                                    ___ ______________            Jackson, 3 F.3d  506, 511 (1st Cir.  1993).  Even  on appeal,            _______            Santa   has  failed to  offer an  alternative account  of the            packaging and location of the cash.  "[T]he     determination            that  an  amount  of  money  represents  proceeds  from  drug            transactions that are part  of the same course of  conduct as            the  charged  offense,  and  therefore   represents  relevant            conduct  attributable  to  the  defendant,  is  predominantly            factual and reviewable only for clear error." Jackson, 3 F.3d                                                          _______            at 510.   In  this case,  the sentencing  judge's conclusions            were not clearly erroneous.  The court was free to disbelieve            Santa's claim that the cash represented savings for a trip to            Colombia.  The packaging and location of the cash belied that            claim.  Similarly, given the almost three-month lapse between            the  previous sales  of drugs  and the  seizure of  cash, the            rejection of Santa's claim that the cash represented proceeds            from the previous sales is not clearly erroneous.  "The judge                                         -3-            present  at the sentencing hearing is in the best position to            determine  the credibility of the witnesses and the source of            the currency, . . ."  Jackson, 3 F.3d at 512.                                  _______                               II.  Downward Departure                                    __________________                      Santa's  second argument  on  appeal  is  that  the            sentencing court erred in denying his request for  a downward            departure  from  the guideline  sentence.    "It  is  by  now            axiomatic that  a criminal defendant cannot  ground an appeal            on a sentencing court's  discretionary decision not to depart            below  the guideline  sentencing  range."   United States  v.                                                        _____________            Pierro, 32  F.3d 611, 619 (1st  Cir. 1994), cert. denied,                ______                                      _____ ______   __            U.S.    , 115 S.Ct. 919 (1995).  "Appellate jurisdiction does                 ___            attach, however, where the decision not to depart is based on            the sentencing court's assessment of its lack of authority or            power  to depart."  United  States v. Morrison,  46 F.3d 127,                                ______________    ________            130 (1st Cir. 1995).                      Although the sentencing court indicated that it was            skeptical  about its  authority  to depart  on  the basis  of            Santa's status as a  deportable alien, that was not  the sole            ground for its failure  to depart.  The court  clearly stated            that  "even if I were permitted to make a downward departure,            I wouldn't do  it on this basis."  Therefore,  the failure to            depart  was  the  result  of a  discretionary  decision  that            departure  was not  appropriate,  even if  it was  permitted.                                              ____ __                                         -4-            Accordingly,  this  court lacks  jurisdiction  to  review the            sentencing court's departure decision.                      The sentence  is summarily  affirmed.  See  Loc. R.                                       _________  ________   ___            27.1.                                         -5-
