
USCA1 Opinion

	




          July 23, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1294                                    UNITED STATES,                                      Appellee,                                          v.                             ALEJANDRO DE JESUS GRANADA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Irma R. Valldejuli on brief for appellant.            __________________            Guillermo Gil, United  States Attorney, Warren Vazquez and  Nelson            _____________                           ______________      ______        Perez-Sosa,  Assistant United  States Attorneys,  and Jose  A. Quiles-        __________                                            ________________        Espinosa, Senior Litigation Counsel, on brief for appellee.        ________                                 ____________________                                 ____________________                      Per Curiam.  Alejandro De Jesus Granada appeals his                      __________            sentence on two grounds.  We affirm.                      1.  Role in the offense.  Appellant argues that the                          ___________________            district  court erred in failing  to grant his  request for a            two-level reduction in the offense level based upon his minor            role in the offense, pursuant to U.S.S.G.    3B1.2.  The plea            agreement   entered  between  appellant  and  the  government            expressly provided that, beyond the adjustment for acceptance            of responsibility, "no further adjustments to the defendant's            base offense level  shall be  made."  It  might therefore  be            argued  that  appellant  waived   his  right  to  request  an            adjustment for his  role in  the offense, but  there is  some            difference  among  the  circuits  on when  and  whether  such            stipulations are  binding on the  district court and  we have            not resolved  this issue.   Compare United States  v. Isirov,                                        _______ _____________     ______            996 F.2d 183, 186-87  (7th Cir. 1993), with United  States v.                                                        ______________            Long, 77 F.3d 1060, 1061 (8th Cir. 1996).            ____                      In all events, Granada was convicted of importing a            specific  shipment of  heroin.   He is  the one  who  did the            importing  and while  there is  some indication  that someone            else furnished him with the drugs, there is almost nothing to            indicate  that his role in this importation was minor.  Given            that  the burden was on Granada  to show that he was entitled            to the downward adjustment, the district court did not err in            its conclusion that the adjustment was unwarranted.                                         -2-                      2.    Departure  Pursuant  to   U.S.S.G.     5K2.0.                            ____________________________________________            Appellant contends  that the district court  erred in failing            to  depart downward under U.S.S.G.   5K2.0, on account of his            substantial  assistance  to  the government,  notwithstanding            that  the government did not move for a departure pursuant to              5K1.1.  "It  is by now axiomatic that a  criminal defendant            cannot ground an appeal on a sentencing court's discretionary            decision not to depart below the guideline sentencing range."            United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994).              _____________    ______                      In  his brief,  appellant does  not argue  that the            district court misunderstood  its legal authority  to depart.            The transcript  of the  sentencing hearing does  not indicate            that  the  court  suffered   from  such  a  misunderstanding.            Therefore,  this  court  lacks  jurisdiction  to  review  the            sentencing court's discretionary decision not to depart.                      3.   Pro Se Motion to  Supplement Appellate Record.                           _____________________________________________            Appellant  filed a pro se  motion with this  court seeking to                               ___ __            supplement  the  record  by adding  a  letter  from  a prison            psychologist. In his motion, Granada suggests that the letter            calls into question  the validity  of his guilty  plea.   The            letter  was never before the district court.  Nor has Granada            raised  the issue  of  the validity  of  his guilty  plea  in            district court.   "It is a bedrock rule that when a party has            not  presented an argument to the district court, she may not                                         -3-            unveil it in the court of appeals."  United  States v. Slade,                                                 ______________    _____            980 F.2d 27, 30 (1st Cir. 1992).                      Appellant's sentence is affirmed. See Loc. R. 27.1.                                              ________  ___            Appellant's pro se motion to supplement the record on  appeal                        ___ __            is denied.               ______                                         -4-
