
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1585                                    UNITED STATES,                                      Appellee,                                          v.                                  JOSE TOMAS DISLA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Cyr, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            James E. Fitzgerald on brief for appellant.            ___________________            Sheldon  Whitehouse,  United  States  Attorney, and  Stephanie  S.            ___________________                                  _____________        Browne, Assistant United States Attorney, on brief for appellee.        ______                                 ____________________                                   January 22, 1997                                 ____________________                 Per Curiam.  Jose Tomas Disla  appeals from his sentence                 __________            on three grounds.  First, he argues that the sentencing court            erred  in failing  to grant  him a  reduction in  his offense            level for  his role in the offense  as a "minimal" or "minor"            participant, pursuant  to Section 3B1.2 of  the United States            Sentencing Guidelines.   Second,  Disla faults the  court for            failing  to  consider sua  sponte  a  downward departure  for                                  ___  ______            aberrant  behavior  and  extraordinary family  circumstances.            Finally,  he  raises a  claim  of  ineffective assistance  of            counsel.              I. Role in the Offense               ___________________                 The  guidelines   define  a  "minimal"   participant  as            "plainly among the  least culpable of  those involved in  the            conduct  of  a group.  .  .  .    [T]he defendant's  lack  of            knowledge or understanding of the scope and structure  of the            enterprise and of the activities of others is indicative of a            role as  minimal participant." U.S.S.G.    3B1.2(a), comment.            (n.1).  A "minor"  participant is  defined as  "less culpable            than most other participants, but whose  conduct could not be            described as minimal."   U.S.S.G.   3B1.2(b), comment. (n.3).            At  sentencing,  Disla  argued  that  his  participation  was            "minimal."  On  appeal, for  the first time,  he argues  that            even  if  he did  not qualify  as  a minimal  participant, he            should have received an adjustment for "minor" participation.                                         -2-                 "Assessing a defendant's role in the  offense is a fact-            specific  task,   suggesting   by  its   very  nature   'that            considerable respect be paid  to the views of the  nisi prius            court.'   It follows, therefore, that unless a mistake of law            looms  .  . .  [,] a  sentencing  court's determination  of a            defendant's role  will be set  aside only  for clear  error."            United  States v.  Tejada-Beltran, 50  F.3d 105,  110-11 (1st            ______________     ______________            Cir. 1995).                 The  district  court  found  that Disla  was  an  "equal            partner  in  the  transaction.   He  knew  the  scope of  the            activity.   He knew it was for the purchase of a large amount            of cocaine. .  . . He knew the location of where the drug was            to be taken and  sold."  The record supports  those findings.            Disla  was  one  of  only two  charged  codefendants  in  the            conspiracy  to distribute  cocaine.   The record  contains no            evidence that  there were participants other  than Disla, his            co-defendant  and   the  government  agents.     Under  those            circumstances,  the district  court's  assessment of  Disla's            role  in  the offense  was  not clearly  erroneous.   Disla's            additional claims of legal error are also without merit.                 II. Downward Departure                     __________________                 For the  first time  on  appeal, Disla  argues that  the            district court erred in failing  to make a downward departure            for aberrant behavior and extraordinary family circumstances.            Disla's  failure to  request a  downward departure  on either                                         -3-            ground in the district  court forecloses our consideration of            the issue.  See United  States v. Field, 39 F.3d 15,  21 (1st                        ___ ______________    _____            Cir. 1994), cert. denied, __ U.S. __, 115 S. Ct. 1806 (1995).                        ____________                 III. Ineffective Assistance of Counsel                      _________________________________                 To the  extent that  Disla is  arguing that  he received            ineffective assistance  of counsel  because his  attorney did            not  move   for  a   departure  for  aberrant   behavior  and            extraordinary family circumstances, the claim  is unavailing.            The  record contains scant  evidence of  family circumstances            that  would permit a departure.  See United States v. Rushby,                                             ___ _____________    ______            936  F.2d 41,  42  (1st Cir.  1991)  (holding, on  record  of            similar   family  circumstances,   that  departure   was  not            permitted).   With  respect  to the  failure  to move  for  a            departure based  upon aberrant behavior, Disla  has failed to            "demonstrate that there  was a  reasonable probability  that,            but  for  counsel's  [alleged]  errors,  the  result  in  the            proceeding  would  have  been  different."  Carey  v.  United                                                        _____      ______            States, 50 F.3d 1097, 1101 (1st Cir. 1995).            ______                 The sentence is summarily affirmed.  See Loc. R. 27.1.                                 _________ ________   ___                                         -4-
