
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1969                                     UNITED STATES,                                      Appellee,                                          v.                               RAMON PRUDENCIO VANEGAS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Frank D. Inserni on brief for appellant.            ________________            Guillermo Gil, United  States Attorney, Warren Vazquez,  Assistant            _____________                           ______________        United States Attorney, and Jos  A. Quiles-Espinosa, Senior Litigation                                    _______________________        Counsel, on brief for appellee.                                 ____________________                                    April 13, 1995                                 ____________________                 Per Curiam.   In  April 1994, defendant  Ramon Prudencio                 __________            Vanegas pled guilty to a charge of possessing, with intent to            distribute, over 100 kilograms of marijuana on board a vessel            subject  to  the  jurisdiction   of  the  United  States,  in            violation of 46  U.S.C. App.   1903(a).   In August  1994, he            was sentenced to a prison term of 87 months.  Throughout this            period,  defendant  (a   57-year-old  citizen  of   Colombia)            suffered   from   a  hearing   impairment   and   a  prostate            condition.1   Anticipating that  his medical  condition would            be a relevant factor  at sentencing, he sought  permission in            May 1994 to retain a physician to provide him with a complete            assessment thereof.   This motion was denied,  and the matter            was not thereafter pursued.   Defendant now appeals, alleging            that  the district court erred  in denying this  request.  We            find no abuse of discretion and therefore affirm.                 Defendant complains  that the lack of  a private medical            evaluation  hampered  his  ability  to argue  for  a  reduced            sentence in  light of his ailments.2  This contention falters            for  at  least two  reasons.   First,  far from  objecting at                                            ____________________            1.  The  hearing  impairment  resulted  in  partial  loss  of            hearing.  The prostate condition, according to defendant, was            diagnosed  in a  May  1994 prison  medical  report as  benign            prostate hypertrophy  (enlargement),  which caused  no  major            pain or discomfort.            2.  He  similarly complains  that  the denial  of his  motion            prevented   him  from  negotiating   a  more  favorable  plea            agreement with the government.  It is difficult to understand            how,  since the  plea agreement  was completed  several weeks            before his motion was filed.                                            -2-            sentencing  to the  state  of the  medical evidence,  defense            counsel acknowledged  that  the matter  had been  "adequately            addressed."  Second, the district  court ended up agreeing to            a  two-level  downward departure  on  account of  defendant's            health and  age (going beyond the government's recommendation            for a one-level departure  in this regard).  See  U.S.S.G.                                                            ___            5H1.1,  5H1.4.3    It  also  recommended  that  defendant  be            confined   at  an   institution  equipped   with  appropriate            treatment  facilities.   By  these  and  other actions,4  the            court evinced an obvious appreciation of defendant's  medical            situation.                 Defendant  also  suggests  that his  hearing  impairment            prevented  him from  fully understanding  what transpired  at            sentencing.    Yet  the  district court  was  aware  of  this            condition, having  advised the  interpreter at the  outset to            speak  firmly   since   "defendant  is   hard  of   hearing."                                            ____________________            3.  Ordinarily,  a defendant  who receives  the benefit  of a            downward  departure  cannot appeal  on  the  ground that  the            departure was  not sufficiently  liberal.  See,  e.g., United                                                       ___   ____  ______            States v.  Pighetti, 898 F.2d  3, 4 (1st  Cir. 1990).   Here,            ______     ________            however,  defendant does not appeal his  sentence per se, but                                                              ______            appeals the  denial  of  his  motion  for  appointment  of  a            physician.  Since  the outcome is the  same in any event,  we            assume--but   do   not   decide--that   we   have   appellate            jurisdiction.            4.  Shortly  after  entering his  guilty plea,  defendant had            filed  a "motion  requesting medical  treatment" in  which he            complained that prison authorities had not  properly attended            to  his  medical needs.   The  court  allowed the  motion and            ordered that  defendant be provided  with whatever  treatment            "his condition may require."                                         -3-            Defendant's replies to the court's  inquiries were responsive            in nature, reflecting no  difficulties in comprehension.  And            neither defendant  nor counsel  voiced any complaint  in this            regard.  This contention thus falters as well.                 Affirmed.  See Loc. R. 27.1.                 ____________________________                                         -4-
