
USCA1 Opinion

	




          April 28, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2354                                                UNITED STATES,                                      Appellee,                                          v.                                 MORGAN RIVERA-PEREZ,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ___________________                                        Before                             Torruella, Selya and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               David W. Roman on brief for appellant.               ______________               Guillermo  Gil,  United  States Attorney,  Jose  A.  Quiles-               ______________                             _________________          Espinosa,  Senior  Litigation  Counsel,  and  Miguel  A. Pereira,          ________                                      __________________          Assistant United States Attorney, on brief for appellee.                                  __________________                                  __________________                      Per  Curiam.   Appellant  Morgan  Rivera-Perez pled                      ___________            guilty to one count  of mail fraud, and aiding  and abetting,            in violation of  18 U.S.C.    2, 1341.   Prior to sentencing,            the government filed a motion requesting a downward departure            pursuant to U.S.S.G.   5K1.1.  The district court declined to            depart downward and sentenced appellant to twenty-four months            imprisonment,  the  top  end  of  the  applicable  guidelines            sentencing range.1  This appeal ensued.                                      BACKGROUND                 On  July 22, 1992, appellant  was the subject  of a four            count  indictment charging him, and three co-defendants, with            engaging in a scheme to  defraud $1,401,000 from an insurance            corporation.  On  October 8, 1992,  appellant pled guilty  to            Count  II of the indictment pursuant to a plea agreement with            the  government.    The  plea  agreement  provided  that  the            relevant  conduct for purposes  of calculating the guidelines            sentencing  range would be limited  to the amount  of loss to            which  the  defendant   pled  guilty  ($322,000.00).2     The            agreement  further provided  that  the  government  would  be            willing to consider future  truthful cooperation by appellant                                            ____________________            1.  The district court also imposed a supervised release term            of  three years, restitution in the amount of $275,000, and a            special monetary assessment of $50.00.            2.  The  limitation in  relevant  conduct resulted  in a  net            total  offense level  under  the guidelines  which was  three            levels below what it otherwise would have been.                                           -2-            in  determining  whether to  move  the district  court  for a            downward departure pursuant to U.S.S.G.   5K1.1.                 On  August  5,  1993,  appellant  appeared  before   the            district court for the imposition of sentence.  At that time,            the government filed a motion requesting a downward departure            pursuant  to   5K1.1.  In its motion, the government detailed            not only the assistance  provided by appellant in prosecuting            the particular scheme for which he was indicted, but also his            assistance in  investigating  other offenses.   The  district            court  declined  to  depart  downward.   In  support  of  its            decision, the district court stated:                 Granting  the   value  of   his  past  and   future                 cooperation,  it is  generally recognized  that the                 Court need not reward defendant for his cooperation                 if such defendant has already received the  benefit                 of that cooperation through a plea agreement.  Such                 was  the case  here where defendant  Rivera charged                 with  serious fraudulent  conduct obtained  a three                 level reduction  of his offense level upon agreeing                 in the  plea agreement that the  base offense level                 be  calculated on  the basis  of the  three hundred                 twenty-two thousand dollars which he  received, and                 not on the  basis of  the total lose  [sic] to  the                 victim of one million four hundred and one thousand                 as  a  result  of the  scheme  of  which  he was  a                 principal  participant in  a  criminal  venture  of                 considerable magnitude.   To depart  downward given                 the circumstances of this  case would serve only to                 trivialize  defendant's  criminal  wrongdoing,  and                 would defeat  the deterant [sic] effect  a sentence                 would   have   on   others.      Accordingly,   the                 government's  motion  for  downward   departure  is                 denied.                                      DISCUSSION                 An appeal will  not lie from a district  court's refusal            to depart from a  properly calculated sentencing range unless                                         -3-            the  failure to  depart stemmed  from the  sentencing court's            mistaken  impression that  it lacked  the legal  authority to            depart or, relatedly, from the court's misapprehension of the            rules  governing  departure.   See,  e.g.,  United States  v.                                           ___   ____   _____________            McAndrews,  12 F.3d  273,  276 n.2  (1st  Cir. 1993);  United            _________                                              ______            States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied,            ______    ______                                ____________            113 S. Ct. 224 (1992).  Appellant attempts to fit within  the            exception  by  arguing that  the  district  court's departure            decision reflected a misunderstanding  of the guidelines.  We            disagree.                 In  United States v.  Mariano, 983 F.2d  1150, 1157 (1st                     _____________     _______            Cir. 1993), we  stated that  a district court  may decide  to            forgo  a      5K1.1  downward  departure  on   the  basis  of            considerations "not constitutionally  proscribed."   Contrary            to  the  position  urged  by  appellant,  there  was  nothing            improper in  the district court declining  to depart downward            from the applicable guideline sentencing range on the grounds            that   a  lesser   sentence   would  trivialize   appellant's            wrongdoing and fail to have a deterrent effect.  Indeed, such            considerations are perfectly consistent  with the purposes of            the  sentencing  system  which  include  "the  need  for  the            sentence imposed `to  promote respect for  the law,' and  `to            afford adequate  deterrence  to criminal  conduct.'"   United                                                                   ______            States  v. Smith, 14 F.3d  662, 666 (1st  Cir. 1994) (quoting            ______     _____            from 18 U.S.C.   3553(a)(2)(A) & (B)).                                              -4-                 Appellant's  remaining  argument   boils  down  to   the            contention  that the district court erred in thinking that he            sought  a  double  benefit--the  three  level  reduction   in            relevant conduct  which resulted from his  plea agreement and            an  additional     5K1.1  downward  departure--for  the  same            cooperation.   Appellant argues that he did not seek a double            benefit since the  reduction in relevant conduct was based on            his initial  assistance  to the  government and  the    5K1.1            motion was  based on  further assistance rendered.   Assuming            without  deciding that  we have  jurisdiction to  review this            claimed error, we disagree that the district court's comments            at  sentencing  reflected  any fundamental  misunderstanding.            The district  court duly considered the  value of appellant's            "past  and future"  cooperation  with the  government.3   The            court concluded, however, that in light of the seriousness of            the   crime  and  the   substantial  sentencing  benefit  the            appellant  had already  received,  no additional  benefit was            warranted.    This  decision  was well  within  the  district            court's discretion.                 The judgment below is affirmed.  See 1st Cir. R. 27.1.                                       _________  ___                                                              ____________________            3.  Where,  as here,  the district  court declined  to depart            from the applicable guideline  range, it was not required  to            make specific findings regarding  such factors as the degree,            efficacy,  timeliness,  and   circumstances  of   appellant's            cooperation  with the  government.    Accordingly, we  reject            appellant's  suggestion that  the  court's failure  to do  so            indicates that it did not properly consider these factors.                                         -5-
