
USCA1 Opinion

	




          February 22, 1996     [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1593                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  SUSAN DELVECCHIO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Susan K.  Howards, by appointment of  the court,  with whom Pamela            _________________                                           ______        Harris-Daley and Launie & Howards, P.A. were on brief, for appellant.        ____________     ______________________            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Sheldon  Whitehouse, United  States  Attorney,  and Zechariah  Chafee,        ___________________                                 _________________        Assistant  United  States Attorney,  were  on  brief, for  the  United        States.                                 ____________________                                 ____________________                      Per Curiam.  Defendant Susan  DelVecchio brings two                      Per Curiam.            challenges  to her sentence, one  of which this  court has no            jurisdiction  to entertain,  the other  of which  was waived.            Defendant  was  sentenced to  46  months  imprisonment to  be            followed  by  three years  of  supervised  release after  she            pleaded  guilty to  three charges  of cocaine  possession and            distribution.                      DelVecchio's first  challenge  is to  the  district            court's failure  to grant her  a downward departure  based on            assertedly unusual circumstances -- including her history  of            depression,  a  suicide attempt,  sexual  abuse  by a  family            friend  and  physical  and  emotional  abuse  by  her  former            husbands.   DelVecchio  argues these  circumstances took  her            case  outside of  the  "heartland" of  cases  covered by  the            Sentencing Guidelines, see United  States v. Rivera, 994 F.2d                                   ___ ______________    ______            942  (1st Cir.  1993), and  that the  district court  was not            fully aware of its ability  to make a discretionary  downward            departure based on these circumstances.  However, it is clear            from  the  record that  the  experienced  district court  did            indeed understand  its authority  to depart downward.   After            hearing  defense  counsel's  argument regarding  Rivera,  the                                                             ______            district court stated, "I  don't see any facts in  here which            would  justify me to  go below the  guideline range. .  . . I            have the authority,  of course . . . ."   The court concluded            that it did not "find the facts and circumstances which would                                         -2-                                          2            warrant" a downward departure.   It is settled law  that this            court  does  not have  jurisdiction  to  review the  district            court's refusal  to exercise its  discretionary authority  to            grant a downward departure.  E.g., United States v. Lewis, 40                                         ____  _____________    _____            F.3d 1325, 1345 (1st Cir. 1994).                      Defendant also raises several arguments surrounding            the  government's  decision  not   to  move  for  a  downward            departure  pursuant to U.S.S.G.    5K1.1 (Nov.  1994).  Under            the terms of her plea agreement, the government had agreed to            consider  filing  such a  motion  if  the defendant  provided            substantial assistance in the "investigation  and prosecution            of another person."  The decision whether to file the motion,            it  was  agreed, was  in  the discretion  of  the government.            Because   the  government  determined   that  the  assistance            DelVecchio did provide was "unavailing"  and not substantial,            it declined to file the motion.                      DelVecchio now argues, among other points, that the            government's refusal to file  the motion and its drafting  of            the agreement were done in "bad faith" allegedly in violation            of law and that the district court erred in refusing to grant            a downward departure.   The fatal flaw in these  arguments is            that  the  defendant failed  to  raise them  in  the district            court,  and we  decline to  entertain them  now.   See, e.g.,                                                               ___  ____            United States  v. Carvell, ___  F.3d ___,  ___, No.  95-1606,            _____________     _______            slip op. at 15 (1st Cir. Jan. 19, 1996) ("[I]ssues not raised                                         -3-                                          3            below  will not  be heard  on appeal  unless there  was plain            error.").   Moreover, in  addition to failing  to raise these            arguments  below, DelVecchio  now  points to  nothing in  the            record outside  the plea agreement itself  as even indicating            bad  faith  or   motive  on  the  part   of  the  government.            Accordingly,  we  believe  that   DelVecchio  has  failed  to            establish any  error sufficiently obvious and  substantial to            survive "plain error" review.                      Affirmed.                      ________                                         -4-                                          4
