

                    [NOT FOR PUBLICATION]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

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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).                                       

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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                             

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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. &amp; 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.                              

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