

                      [NOT FOR PUBLICATION] 

                  United States Court of Appeals
                      For the First Circuit
                                           

No. 96-1506

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                           GLADYS LIND,

                      Defendant, Appellant.
                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Salvador E. Casellas, U.S. District Judge]                                                                  
                                           

                              Before

                     Torruella, Chief Judge,                                                     
                  Coffin, Senior Circuit Judge,                                                        
                    and Stahl, Circuit Judge.                                                      

                                           

     Marlene  Aponte Cabrera,  by Appointment  of the  Court, for                                      
appellant.
     Jacabed  Rodriguez Coss,  Assistant United  States Attorney,                                      
with whom  Guillermo Gil,  United States  Attorney,  and Jose  A.                                                                           
Quiles Espinosa, Assistant United  States Attorney, were on brief                         
for appellee.

                                           

                          April 3, 1997
                                          

     Per Curiam.  Following a guilty plea to drug importation and                         

distribution charges, appellant Gladys  Lind was sentenced to the

statutorily mandated minimum term of 60 months imprisonment based

on  the substantial amount of heroin involved.  She challenges in

this appeal  the  district court's  failure to  grant a  downward

departure in  the length of  her sentence.   Because there  is no

evidentiary or legal basis for relief  from the mandatory minimum

term, we affirm.

     Appellant  emphasizes  various  factors in  support  of  her

request   for   leniency:  her   "extraordinary"   acceptance  of

responsibility, her minor role as a courier and the small payment

she was  to receive ($3,000),  a difficult personal  history that

included diminished capacity stemming from a 23-year daily heroin

habit,  her efforts at drug  rehabilitation, and her  status as a

first-time offender.

     Even were we to  accept her assertion that a  five-year term

is  overly severe  in these  circumstances,  we would  be without

authority  to  ameliorate it.   Neither  of  the two  methods for

escaping a  statutory minimum  is applicable: the  government did

not move  for a departure  based on substantial  assistance under

U.S.S.G.   5K1.1, see 18 U.S.C.   3553(e), and the district court                               

found that appellant  had failed to  fulfill the requirements  of

the "safety valve" provision  of 18 U.S.C.   3553(f)  (U.S.S.G.  

5C1.2).   Other  than in  conclusory references at  oral argument

that  provide no basis  for appellate  second-guessing, appellant

                               -2-

has not  disputed the inapplicability of these  provisions.1  The

statutory  minimum thus  stands as  an insurmountable  barrier to

appellant's effort  to reduce her  sentence.   See, e.g.,  United                                                                           

States  v. Rodriguez, 938 F.2d  319, 320 (1st  Cir. 1991) ("[T]he                              

[sentencing]  guidelines  do  not  supersede  a  minimum sentence

mandated by statute.")2

     Moreover, even  if departure  were available here,  we would

lack  jurisdiction to review the district court's decision not to

reduce  appellant's   sentence.     Having  carefully   read  the

transcript of  the sentencing hearing, we are  confident that the

district court  understood its  authority to depart,  but decided

against  doing so in this case.   See Tr. at  12 ("In the Court's                                               

opinion  no departure is warranted in this  case and the Court is

bound by the mandate  of the U.S. Sentencing Guidelines.")   Such

                                                  

     1  Appellant's counsel  seemed to  suggest in  argument that
appellant was given no opportunity to respond to the government's
assertion   that  she   had  not   satisfied  the   safety  valve
requirements.   At the sentencing hearing,  however, counsel made
no  attempt   to  show   compliance  with  the   provisions,  and
appellant's brief  also includes no argument  concerning   5C1.2.
The issue is therefore entirely undeveloped, and consequently not
before us. 

     2  At oral argument, counsel  did urge us  to reconsider our
precedent holding that statutory minimum terms may not be reduced
based   on  the   discretionary  guidelines   departure  factors.
Regardless  of its substantive  merit, which we  do not consider,
this argument  is unavailing because it was not raised below.  In
the district  court, appellant simply sought a departure based on
the  various  factors  noted  above; she  did  not  suggest,  and
provided no  rationale for,  reversing the well  established rule
that departures are unavailable when a mandatory minimum  term is
set  by statute  unless the  "substantial assistance"  or "safety
valve" provisions are satisfied.

                               -3-

discretionary decisions are not appealable.  See United States v.                                                                        

Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996).                     

     Affirmed.                       

                               -4-
