July 7, 1993
                      [Not for Publication]
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-2094

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      ABDULLAH SAUBAR, a/k/a
                      AUBURN GLENN JOHNSON,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. Mark L. Wolf, U.S. District Judge]
                                                    

                                           

                              Before

                       Selya, Cyr and Stahl,

                         Circuit Judges.
                                       

                                           

     Catherine C. Czar for appellant.
                      
     A. John  Pappalardo, United States Attorney,  and A. Clayton
                                                                 
Spencer, Assistant United States Attorney, for appellee.
       

                                           

                                           

          Per  Curiam.   Abdullah  Saubar  appeals the  nine-year
          Per  Curiam.
                     

prison sentence  imposed following his  conviction as a  felon in

possession  of a  firearm under  18 U.S.C.     922(g)(1), 924(e).

Section  924(e)  mandates a  minimum  sentence  of fifteen  years

unless  the  government  elects  to  exercise  its  discretionary

authority, under  18 U.S.C.    3553(e)1 and U.S.S.G.    5K1.1, to

recommend  a  downward  departure.    The  government  agreed  to

recommend  a  six-year  downward  departure  from  the  mandatory

fifteen-year  minimum.    Its  promise  was  conditioned  on  (1)

Saubar's  "specific agreement" to render "substantial assistance"

to the  government in other criminal  investigations and prosecu-

tions,  and  (2)  Saubar's  agreement  not  to  "argue" that  the

district  court impose  less than  the nine-year  sentence recom-

mended by the government.   At sentencing, the government  recom-

mended  the  six-year  downward  departure as  promised  and  the

district court approved the recommendation.  

          Although   Saubar  concedes  that   we  lack  appellate

jurisdiction of  a sentencing appeal  brought by a  defendant who

seeks to challenge the extent of a downward departure, see, e.g.,
                                                                

United  States v.  Pighetti, 898 F.2d  3, 4  (1st Cir.  1990), he
                           

argues for remand on the ground that the district court misappre-

hended  its sentencing  authority, as  well as  the  criteria for

quantifying its  downward departure  under section 3553(e).   See
                                                                 

                    

     1Section  3553(e)  provides  that,  "[u]pon  motion  of  the
Government, the  court  shall  have  the authority  to  impose  a
sentence below a level established by statute as minimum sentence
so  as to  reflect a  defendant's substantial  assistance  in the
investigation or prosecution of  another person who has committed
an offense."  18 U.S.C.   3553(e).

United  States v.  Amparo, 961  F.2d 288,  292 (1st  Cir.), cert.
                                                                

denied,  113 S. Ct. 224 (1992).   Once the government "opened the
      

door" by  making its section  3553(e) motion, the  argument goes,

the  sentencing  court  was  empowered to  enlarge  the  downward

departure   to   reflect    Saubar's   "extraordinary    physical

impairment."2  See U.S.S.G.   5H1.4.3
                  

          It is well  settled in this  circuit that a  sentencing

court  may not depart  below a mandatory  minimum sentence unless

the government  makes a "substantial assistance"  motion pursuant

to 18 U.S.C.   3553(e) or U.S.S.G.   5K1.1.  See United States v.
                                                              

Mazzaferro,  907 F.2d 251, 254  (1st Cir. 1990);  see also United
                                                                 

States v. Mariano,  983 F.2d 1150, 1155 (1st  Cir. 1993).  Saubar
                 

is  bound by  the  terms under  which  the government  agreed  to

exercise  its  discretionary  power  to  make  its  indispensable

recommendation.   Acknowledging  his voluntary  agreement not  to

"argue  for  a  lower sentence,"  Saubar  says  that he  benignly

presented  "detailed  evidence" of  his  health  problems to  the

district court, but never actively  "argued" for a lower sentence
                                  

on the  basis of his physical  condition.  At most,  he contends,

any request for a greater departure was "implicit."

                    

     2Saubar   suffers  from  a   pre-offense  medical  condition
requiring kidney dialysis three times a week.  At sentencing, the
district court expressly acknowledged the seriousness of Saubar's
physical condition.

     3Section  5H1.4 provides  that, though  "physical condition"
normally is not relevant to the sentencing decision, "an extraor-
dinary physical impairment may  be a reason to impose  a sentence
below  the applicable  guideline range;  e.g., in  the case  of a
                                             
seriously infirm  defendant, home  detention may be  as efficient
as, and less costly than, imprisonment."  U.S.S.G.   5H1.4.

                                3

          No matter which way Saubar turns, however, his claim is

stymied.  If  he presented his "physical  impairment" argument to

the district  court at  sentencing, even implicitly,  he breached

his  plea agreement with the  government and was  not entitled to

any  downward departure.    If he  did  not raise  his  precatory

  5H1.4 argument at sentencing,  it is waived.  United  States v.
                                                              

Figueroa, 976 F.2d 1446, 1462 n.22 (1st Cir. 1992), cert. denied,
                                                                

113 S. Ct. 1346 (1993); United States v. Shattuck, 961 F.2d 1012,
                                                 

1015 (1st Cir. 1992); see United States v. Foster, 988  F.2d 206,
                                                 

209-10 (D.C. Cir. 1993)  (sentencing claim waived where defendant

merely recited  a list  of mitigating  factors that  the district
              

court should consider, but  did not tie evidence to  a particular
                                       

legal  ground   for  a  greater  departure       i.e.,    3B1.2).
                                                     

Moreover, having voluntarily accepted  the benefit of the promise

scrupulously  honored by  the  government,  Saubar surely  cannot

demonstrate  a  "miscarriage  of  justice"  or  the  "fundamental

unfairness"  required on "plain error" review.  See United States
                                                                 

v.  Montoya, 967 F.2d 1,  5 (1st Cir.)  (waived sentencing issues
           

reviewed only for "fundamental unfairness"), cert. denied, 113 S.
                                                         

Ct.  507  (1992).   As it  "clearly  appears that  no substantial

question  is   presented,"  the  appeal  is  summarily  dismissed

pursuant to Local Rule 27.1.

          Dismissed.
          Dismissed
                   

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