
USCA1 Opinion

	




          January 24, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1857                                                UNITED STATES,                                      Appellee,                                          v.                               BENITO FILIMON JIMINIAN,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ___________________               Joel Vincent on brief for appellant.               ____________               Jonathan R. Chapman, Assistant  United States Attorney,  and               ___________________          Margaret D. McGaughey, Assistant United States Attorney, on brief          _____________________          for appellee.                                  __________________                                  __________________                      Per  Curiam.    Defendant-appellant  Benito Filimon                      ___________            Jiminian pled  guilty to  one count  of possession  of heroin            with  intent to  distribute  it,  see  21  U.S.C.  841(a)(1),                                              ___            841(b)(1)(c), 846, and  one related conspiracy count,  see 18                                                                   ___            U.S.C.   2.  The district court determined that Jiminian is a            career offender under the Sentencing Guidelines and sentenced            him accordingly.  Jiminian  challenges his sentence, claiming            that  he  was  improperly classified  as  a  career offender.            Appellant  also argues  that  the  district  court  erred  in            refusing  his request  for  a  downward  departure  from  the            applicable guideline  range on  the basis  that his  criminal            history  category  over-represented  the  seriousness of  his            criminal history.  We affirm.                                          I.                      The district  court adjudicated  Jiminian a  career            offender on the basis of two prior state drug convictions for            possession   of  cocaine  with   intent  to   distribute  it.            Appellant argues  that these convictions  could not  properly            count as predicate offenses because the Sentencing Commission            exceeded it statutory authority  when it designated  offenses            under  state  drug  laws as  qualifying  offenses  for career            offender status.   In particular, Jiminian contends  that the            enabling  statute, 28  U.S.C.     924(h),  allows  only  drug            convictions   obtained   under   the   federal  statutes   it            enumerates--not  convictions  obtained  under  similar  state                                         -2-            statutes---to  count   as  predicate   offenses.     We  have            previously  rejected this argument  and are not  persuaded to            revisit the  issue here.   See United States v.  Beasley, No.                                       ___ _____________     _______            93-1391, slip op.  at 6-12 (1st Cir. December  21, 1993); see                                                                      ___            also United States  v. Dyer, No. 93-1045, slip op.  at 2 (1st            ____ _____________     ____            Cir. June 18, 1993) (per curiam).                      Appellant also argues that the district court erred            in failing to inquire  into the facts surrounding the  latter            of the two  state drug  convictions to  determine whether  it            indeed  qualified   as   a  predicate   offense.     Although            appellant's argument  is not  entirely clear,  he appears  to            contend that if the district court had made further  inquiry,            it would  have ascertained  that the  evidence in  this state            case  was only  sufficient  to support  a  finding of  simple            possession  of cocaine  for personal  use and  not  intent to            distribute  it.1   Appellant,  however,  conceded  below that            this offense  was a predicate offense under "a strict reading            of the  sentencing guidelines."   Accordingly,  the issue  is            waived on appeal.  See United  States v. Ortiz, 966 F.2d 707,                               ___ ______________    _____            717  (1st  Cir. 1992)  (claims  not  raised  at the  time  of            sentencing are waived  on appeal), cert.  denied, 113 S.  Ct.                                               _____________            1005   (1993).    We  further  note  that  since  appellant's                                            ____________________            1.  Pursuant  to U.S.S.G.     4B1.1, 4B1.2, a  conviction for            possession  of   a  controlled   substance  with  intent   to            distribute it--but  not  simple possession  of  a  controlled            substance--is a predicate offense for career offender status.                                         -3-            conviction in the state case  at issue resulted from a guilty            plea, he  admitted guilt to  the charged offense.  See, e.g.,                                                               ___  ____            Acevedo-Ramos v. United States, 961 F.2d 305, 308 (1st Cir.),            _____________    _____________            cert. denied, 113 S. Ct. 299 (1992).2            ____________                                         II.                      Appellant's remaining claimed error  is the failure            of the district court to depart downward  from the applicable            guideline  range.    We have  often  stated  that  a district            court's  discretionary  decision  not  to   depart  from  the            guidelines  is unappealable unless the decision is a "product            of  the court's miscalculation about whether it possessed the            authority to depart."  United States v. Amparo, 961 F.2d 288,                                   _____________    ______            292  (1st Cir.), cert. denied, 113 S.  Ct. 224 (1992).  Here,                             ____________            the record is clear that the district court recognized it had            the  authority to depart  from the guidelines,  but exercised            its  discretion  not to  do  so.    Accordingly, we  have  no            jurisdiction to review appellant's claim.  The judgment below            is affirmed.  See Loc. R. 27.1.                          ___                                            ____________________            2.  We  also find that  appellant waived any  issue regarding            the voluntariness of the guilty plea.  We make no  comment on            whether the constitutionality of  the state conviction  would            have  been open  to collateral  attack at  sentencing if  the            issue had been raised below.                                         -4-
