
USCA1 Opinion

	




          March 19, 1996        [Not For Publication]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-1088                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               CATALINO GONZALEZ ROBLES                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________               Benito I. Rodriguez Masso for appellant.               _________________________               Juan A. Pedrosa, Assistant United States Attorney, with whom               _______________          Guillermo Gil,  United States Attorney,  Jose A. Quiles-Espinosa,          _____________                            _______________________          Senior  Litigation  Counsel,  and  Nelson  Perez-Sosa,  Assistant                                             __________________          United States Attorney, were on brief for appellee.                                 ____________________                                 ___________________               Per Curiam.   Appellant, in this  prosecution for possession               __________          of marihuana with intent to distribute (21 U.S.C.   841(a)(1) and          18  U.S.C.    2),  appeals from  the  court's refusal  to  depart          downward from  the  46-month sentence  recommended  and  accepted          pursuant to his plea agreement.               The only formal request  for a downward departure was  based          on  the  circumstances  that appellant  was  the  father of  four          children,  from age 3  to age 12;  that his wife  was a practical          nurse working  with AIDS  patients and  earned $332.00  every two          weeks;  that  food has  been  scarce; that,  having  no immediate          family  available, she has had  to leave her  children alone when          working;  and   that  the  children   receive  psychological  and          psychiatric help on a voluntary basis.               At the sentencing hearing, the court and appellant's counsel          discussed the  circumstances in United States v. Sclamo, 997 F.2d                                          _____________    ______          970 (1st  Cir. 1993), a case  in which we affirmed  a decision of          the  district court to depart downward.  In that case, defendant,          though not a  biological father, nevertheless was  described by a          psychologist  as having  demonstrated  over time  a critical  and          unique role in  his relationship  with a child  suffering from  a          clinical disorder, with a prognosis of risk of serious regression          should defendant be incarcerated.  In the  case at bar, the court          noted  that the persuasive factors in Sclamo were not present and                                                ______          that  the  family's  turmoil   was  no  more  than  the   natural          consequences of a father's  imprisonment.  It concluded  that the          criteria  for departure set forth in United States v. Rivera, 994                                               _____________    ______                                         -2-          F.2d  942 (1st Cir.  1993), had not  been met.   This conclusion,          being a refusal to exercise discretion to depart downward, is not          reviewable.  United States v. Romero, 32 F.3d  641, 653 (1st Cir.                       _____________    ______          1994).               Appellant has briefed a second issue -- that the court erred          in not considering coercion  as a ground for downward  departure.          Our threshold question is whether any such request was made.               This  is the sequence of events.  At the sentencing hearing,          after  defense counsel  presented  her argument  based on  family          circumstances,  the  court  asked  if  defendant  wished  to  say          anything.  He  then gave the  following narrative:   he had  been          invited by a man he thought was a "noble person" to go fishing at          St.  Thomas; once  there,  baiting a  net,  he learned  that  the          mission was  to get marihuana; he  was to be paid  forty or fifty          thousand  dollars for  his participation;  when he  endeavored to          leave, his associate exhibited a cellular phone and said he would          call the owner of the marihuana, who would "see that you and your          family disappear."               Appellant closed his remarks by saying that he had been hurt          irreparably, "for  which reason at  any time the  government will          arrest him I am willing to unmask him.  That is all."               Then  followed three  versions of  what appellant  had said.          The prosecutor pointed out  the inconsistency between appellant's          testimony and  the plea agreement, where  appellant had confessed          to participating in the smuggling venture.  The court thought the          story was not a denial of entering the venture but an explanation                                         -3-          of  how  appellant  became  involved.    It  recognized  that his          "reasons . . . bordered on coercion" but that this had never been          asserted as a defense.  And appellant's counsel  volunteered that          appellant had tried to show "that he is willing at  any time that          the  government needs him, to  cooperate fully and  like he said,          'desen mascarar' [unmask] that person that has caused some damage          to him and his family."               On this record  we cannot say that the court  was faced with          any  request to depart downward.   Reviewing for  plain error, we          find  none.   Not only  did  the plea  agreement  contain a  flat          acknowledgement  of appellant's participation,  without caveat or          excuse,  but after  the prosecutor  orally summarized  the events          leading  up to arrest, the appellant stated his agreement and did          not  accept  the  court's  offer  to  add   any  "corrections  or          modifications."               Affirmed.               ________                                         -4-               Chief Judge Torruella                             March 14, 1996               Judge Cyr               United States v. Gonzalez-Robles               _____________    _______________               No. 95-1088                    I enclose a draft per curiam, which  I see no need to publish.               I welcome your comments and suggestions.
