
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________            No. 95-2282                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JULIO ANDRE VALDEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                           Stahl and Lynch, Circuit Judges,                                            ______________                            and O'Toole,* District Judge.                                          ______________                                 ____________________                Alan Scribner was on brief for appellant.                _____________                Margaret  E.  Curran, Assistant  United  States Attorney,                ____________________            with whom  Sheldon  Whitehouse, United  States Attorney,  and                       ___________________            Zechariah Chafee,  Assistant United States Attorney,  were on            ________________            brief for appellee.                                 ____________________                                     May 20, 1997                                 ____________________            *Of the District of Massachusetts, sitting by designation.                                                                 Per  Curiam.  Julio  Andre  Valdez  challenges  the                      Per  Curiam.                        ___________            district court's refusal to depart downward from the sentence            prescribed by the U.S.  Sentencing Guidelines.  Specifically,            he argues that the  sentencing disparity between cocaine base            and  powder  cocaine  related  offenses  violates the  Eighth            Amendment's prohibition against cruel and unusual punishment.                                          I.                      A jury convicted Valdez  of one count of conspiracy            to distribute  cocaine base ("crack" cocaine)  and two counts            of  distributing cocaine base in violation of 18 U.S.C.    2,            841,  and 846 on  April 25, 1995.   Valdez had  been arrested            after  twice  selling crack  cocaine  to  a Drug  Enforcement            Agency informant in Providence, Rhode Island.                       Based on the total  amount of cocaine base involved            in  the   transactions  (105   grams),  the   district  court            determined  Valdez's  base  offense   level  under  the  U.S.            Sentencing Guidelines  to be 32.   His two  prior convictions            resulted  in a criminal  history category of III.   The judge            imposed a  sentence  of 151  months in  jail and  5 years  of            supervised  release,  with  special  conditions  relating  to            deportation  and  substance  abuse counseling  --  the lowest            sentence permissible within the applicable guideline range.                       At the sentencing hearing Valdez made two arguments            for downward  departure.   First, he  argued that  the United                                          2            States Sentencing Commission's  February 1995 Special  Report            to  Congress (the "Report"),  which recommended  reducing the            disparity between sentences for  crack offenses and those for            cocaine  offenses,  constituted  a   mitigating  circumstance            warranting a downward departure  under U.S.S.G.   5K2.0, p.s.            Second,  he argued that  the court should also  depart on the            basis  of  various  personal  characteristics,  such  as  his            limited  education, pursuant  to U.S.S.G.    5H1,  p.s.   The            court rejected these arguments and refused to depart.                      Apparently having abandoned the claims for downward            departure  based  on  specific  offender  characteristics and            mitigating circumstances,1 Valdez  appeals his sentence on  a            newly  raised ground:  that  the  100-to-1 disparity  between            crack  and  powder  cocaine  penalties  violates  the  Eighth            Amendment, and the district court was thus required to depart            downward.                                         II.                      The court does not have appellate jurisdiction over            a  court's discretionary  refusal  to depart  downward.   See                                                                      ___            United  States v. Saldana, 109 F.3d 100, 103 (1st Cir. 1997);            ______________    _______            United States v.  Sanchez, 81  F.3d 9, 10  (1st Cir.),  cert.            _____________     _______                               _____                                            ____________________            1.  Although Valdez's brief does not appear to challenge the            court's refusal to depart on the ground that the Report            constitutes "mitigating circumstances," the government            addresses the claim in its brief.  To the extent that Valdez            presents this argument, we reject it.  As we have previously            held, the Report is not a permissible ground for departure.             United States v. Andrade, 94 F.3d 9, 14-15 (1st Cir. 1996).               _____________    _______                                          3            denied, 117 S. Ct. 201 (1996).   We can, however, review  the            ______            refusal if it was based on the mistaken belief that the court            had no  authority to depart.   See Saldana, 109  F.3d at 103.                                           ___ _______            Even assuming that the court's failure to depart downward sua                                                                      ___            sponte on a ground  not raised before it is  reviewable under            ______            the latter principle, Valdez  still has a hurdle to  clear to            achieve appellate review.                      We  reject  Valdez's new  argument that  the Eighth            Amendment prohibited  the sentence  he received.   Because of            his failure to raise  the constitutional claim below,  we can            review  only for plain  error.  United States  v. Carvell, 74                                            _____________     _______            F.3d 8, 14 (1st  Cir. 1996) ("[I]ssues not raised  below will            not be heard on  appeal unless there was plain error.").   We            see  no plain  error  here,  nor  has  any  such  error  been            presented to us.  See United States v. Graciani,  61 F.3d 70,                              ___ _____________    ________            76 (1st Cir. 1995) ("At most, the Eighth Amendment gives rise            to  a  narrow  proportionality  principle,   forbidding  only            extreme sentences that  are significantly disproportionate to            the  underlying crime."  (internal  citations  and  quotation            marks  omitted)).  For  this reason, we decline  to reach the            merits of Valdez's Eighth  Amendment argument or his argument            that  this court  should  reconsider its  decision in  United                                                                   ______            States v. Singleterry,  29 F.3d 733, 740-41  (1st Cir. 1994),            ______    ___________            that, inter  alia, the sentencing disparity  does not violate                  _____  ____                                         -4-                                          4            the  Due   Process  and  Equal  Protection   Clauses  of  the            Constitution.                       As for  Valdez's belated argument  that the cocaine            in this case was not in fact crack cocaine, it is too little,            too  late.  While  it is within  our discretion to  review an            issue  raised  for  the  first  time  in  a  reply  brief  if            exceptional circumstances  are shown, Aetna Cas.  Sur. Co. v.                                                  ____________________            P. & B. Autobody, 43 F.3d 1546, 1571 (1st Cir. 1994), we find            ________________            no  such  circumstance in  this  case  and  thus  decline  to            exercise that discretion.                        Affirmed.                      ________                                                                           -5-                                          5
