
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                             United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1506                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     GLADYS LIND,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________               Marlene  Aponte Cabrera,  by Appointment  of the  Court, for               _______________________          appellant.               Jacabed  Rodriguez Coss,  Assistant United  States Attorney,               _______________________          with whom  Guillermo Gil,  United States  Attorney,  and Jose  A.                     _____________                                 ________          Quiles Espinosa, Assistant United  States Attorney, were on brief          _______________          for appellee.                                 ____________________                                    April 3, 1997                                 ___________________               Per Curiam.  Following a guilty plea to drug importation and               __________          distribution charges, appellant Gladys  Lind was sentenced to the          statutorily mandated minimum term of 60 months imprisonment based          on  the substantial amount of heroin involved.  She challenges in          this appeal  the  district court's  failure to  grant a  downward          departure in  the length of  her sentence.   Because there  is no          evidentiary or legal basis for relief  from the mandatory minimum          term, we affirm.               Appellant  emphasizes  various  factors in  support  of  her          request   for   leniency:  her   "extraordinary"   acceptance  of          responsibility, her minor role as a courier and the small payment          she was  to receive ($3,000),  a difficult personal  history that          included diminished capacity stemming from a 23-year daily heroin          habit,  her efforts at drug  rehabilitation, and her  status as a          first-time offender.               Even were we to  accept her assertion that a  five-year term          is  overly severe  in these  circumstances,  we would  be without          authority  to  ameliorate it.   Neither  of  the two  methods for          escaping a  statutory minimum  is applicable: the  government did          not move  for a departure  based on substantial  assistance under          U.S.S.G.   5K1.1, see 18 U.S.C.   3553(e), and the district court                            ___          found that appellant  had failed to  fulfill the requirements  of          the "safety valve" provision  of 18 U.S.C.   3553(f)  (U.S.S.G.            5C1.2).   Other  than in  conclusory references at  oral argument          that  provide no basis  for appellate  second-guessing, appellant                                         -2-          has not  disputed the inapplicability of these  provisions.1  The          statutory  minimum thus  stands as  an insurmountable  barrier to          appellant's effort  to reduce her  sentence.   See, e.g.,  United                                                         ___  ____   ______          States  v. Rodriguez, 938 F.2d  319, 320 (1st  Cir. 1991) ("[T]he          ______     _________          [sentencing]  guidelines  do  not  supersede  a  minimum sentence          mandated by statute.")2               Moreover, even  if departure  were available here,  we would          lack  jurisdiction to review the district court's decision not to          reduce  appellant's   sentence.     Having  carefully   read  the          transcript of  the sentencing hearing, we are  confident that the          district court  understood its  authority to depart,  but decided          against  doing so in this case.   See Tr. at  12 ("In the Court's                                            ___          opinion  no departure is warranted in this  case and the Court is          bound by the mandate  of the U.S. Sentencing Guidelines.")   Such                                        ____________________               1  Appellant's counsel  seemed to  suggest in  argument that          appellant was given no opportunity to respond to the government's          assertion   that  she   had  not   satisfied  the   safety  valve          requirements.   At the sentencing hearing,  however, counsel made          no  attempt   to  show   compliance  with  the   provisions,  and          appellant's brief  also includes no argument  concerning   5C1.2.          The issue is therefore entirely undeveloped, and consequently not          before us.                2  At oral argument, counsel  did urge us  to reconsider our          precedent holding that statutory minimum terms may not be reduced          based   on  the   discretionary  guidelines   departure  factors.          Regardless  of its substantive  merit, which we  do not consider,          this argument  is unavailing because it was not raised below.  In          the district  court, appellant simply sought a departure based on          the  various  factors  noted  above; she  did  not  suggest,  and          provided no  rationale for,  reversing the well  established rule          that departures are unavailable when a mandatory minimum  term is          set  by statute  unless the  "substantial assistance"  or "safety          valve" provisions are satisfied.                                         -3-          discretionary decisions are not appealable.  See United States v.                                                       ___ _____________          Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996).          ___________               Affirmed.               ________                                         -4-
