
USCA1 Opinion

	




        April 15, 1996          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2270                                 ALONZO ALZATE-YEPEZ,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Michael Ponsor, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Alonzo Alzate-Yepez on brief pro se.            ___________________            Donald  K. Stern,  United  States Attorney,  and  Andrew  Levchuk,            ________________                                  _______________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   After careful review  of the parties'                      __________            briefs and the limited appellate record, we conclude that the            district court  properly denied appellant's 28  U.S.C.   2255            petition.                        Appellant's claims fail procedurally because he did            not raise them either at the time  of sentencing or on direct            appeal.   See  United  States v.  Frady,  456 U.S.  152,  165                      ___  ______________     _____            (1982).  To  the extent  that appellant is  arguing that  his            trial attorney provided ineffective assistance by  failing to            move  for a  downward  departure, that  argument lacks  merit            because there is no legal or evidentiary support here for any            such departure.                      Appellant's claim for a downward departure based on            his status  as a  deportable alien  is without  merit. First,            appellant's statutory mandatory  minimum sentence may not  be            reduced.    See  U.S.S.G.    5G1.1(c)(2);  United  States  v.                        ___                            ______________            Rodriguez,  938 F.2d 319, 320  (1st Cir. 1991).   Second, the            _________            district  court  stated that,  even if  it  had the  power to            depart,  it would not have done so.   "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), cert. denied,  115 S.Ct. 919                                             ____________            (1995).                                          -2-                      Appellant's  claim  regarding   the  safety   valve            provision  fails because the  district court  determined that            appellant did  not cooperate with the  government as required            under 18 U.S.C.   3553(f)(5) and U.S.S.G.   5C1.2.  Appellant            has   submitted   nothing   that   challenges   that  factual            determination.                        Appellant's  claims regarding the amount of cocaine            and  his role in the offense were  not raised in the petition            addressed in this appeal,  and so we will not  consider those            claims.  See United  States v. Jackson, 3 F.3d  506, 511 (1st                     ___ ______________    _______            Cir. 1993).                        Finally, as appellant has not pursued on appeal his            claim that he  should have received  three, rather than  two,            points for  acceptance of responsibility, we  deem that claim            to have been waived.                      Affirmed.  Loc. R. 27.1.                      ________                                         -3-
