
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1912                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              PEDRO ANTONIO RAMOS-ROSA,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                            and Lagueux,* District Judge.                                          ______________                              _________________________               Ernesto Hernandez Milan on brief for appellant.               _______________________               Guillermo Gil, United States Attorney, Jos  A. Quiles-               _____________                          _______________          Espinosa, Senior Litigation Counsel, W. Stephen Muldrow and          ________                             __________________          Nelson P rez-Sosa, Assistant United States Attorneys, on brief          _________________          for appellee.                              _________________________                                     June 9, 1997                              _________________________          _________________          *Of the District of Rhode Island, sitting by designation.                    Per Curiam.  Defendant-appellant Pedro Antonio Ramos-                    Per Curiam.                    __________          Rosa (Ramos) challenges the sentence imposed following his guilty          plea to carjacking (count 1) and an associated firearms charge          (count 2).  See 18 U.S.C.    2, 924(c)(1) & (3), 2119(3) (1994).                       ___          Having reviewed the record carefully, we detect no error.                    In this instance, the sentencing court figured the          applicable guideline sentencing range (GSR) to be 324 to 405          months on count 1.  The government moved for a substantial          assistance departure, USSG  5K1.1, and the appellant chimed in,          seeking even greater clemency.  The court chose a sentence of 225          months on count 1, followed by a mandatory minimum five-year          consecutive sentence on count 2.                    The appellant does not contest the correctness of the          GSR.  Nevertheless, he asserts that the court blundered in          denying him an appropriate downward departure by (a) erroneously          considering his past criminal history (including a juvenile          offense for which no conviction ensued), and (b) ignoring the          purpose of USSG  5K1.1 and the policy of the Sentencing          Commission in respect to offenders who assist the government.           Additionally, he contends that the district court erred by          considering elements of the offense which already were considered          by the Sentencing Commission when it assigned a base offense          level to the crime of conviction.  These claims are meritless.                    "It is by now apodictic that a criminal defendant          cannot ground an appeal on the sentencing court's discretionary          decision not to depart below the GSR."  United States v. Gifford,                                                  _____________    _______                                          2          17 F.3d 462, 473 (1st Cir. 1994); see also Koon v. United States,                                            ___ ____ ____    _____________          116 S. Ct. 2035, 2046-47 (1996); Bruce M. Selya & Matthew R.          Kipp, An Examination of Emerging Departure Jurisprudence Under                ________________________________________________________          the Federal Sentencing Guidelines, 67 Notre Dame L. Rev. 1, 13-14          _________________________________          (1991).  This rule applies full bore to substantial assistance          departures.  See United States v. Vaknin, ___ F.3d ___, ___ (1st                       ___ _____________    ______          Cir. 1997) [No. 96-1394, slip op. at 10-11]; United States v.                                                       _____________          Mariano, 983 F.2d 1150, 1155-57 (1st Cir. 1993).  In both          _______          situations, the departure decision is unappealable as long as it          rests on differential factfinding or on the weighing of competing          equities; jurisdiction only attaches "when it appears that 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."  Mariano, 983 F.2d at 1153.  No such                                 _______          oversight occurred here.                    The appellant labors to find a cognizable error, but he          is unsuccessful.  The district court in fact departed downward.           The appellant's real dissatisfaction is that, as he sees it, the          extent of the departure was not sufficiently generous.  In          general, such complaints are not cognizable on appeal.  See                                                                  ___          United States v. Pighetti, 898 F.2d 3, 4 (1st Cir. 1990).           _____________    ________          Moreover, looking to the whole of the record, see United States                                                        ___ _____________          v. Rostoff, 53 F.3d 398, 407 (1st Cir. 1995), it is perfectly             _______          clear that the trial judge knew he could depart once the          government invoked USSG  5K1.1.  He in fact did so, choosing, as                                          3          was his right, to impose a sentence greater than the prosecution          had recommended or the appellant had hoped but still below the          nadir of the GSR.                    The argument that the court should have gone further          lacks force.  The transcript reveals that Judge Laffitte weighed          the assistance that the appellant rendered (indeed, the judge          noted that he had presided over the trial at which Ramos          testified).  To be sure, the judge did not stop there, but a          sentencing court is not restricted to considering only the          defendant's substantial assistance on a section 5K1.1 motion; the          court may (and should) consider other facts.  See Mariano, 983                                                        ___ _______          F.2d at 1156-57; see also 18 U.S.C.   3553.  Accordingly, we                           ___ ____          believe it is entirely appropriate that Judge Laffitte mulled the          nature of the offenses and the appellant's participation in them.           The judge also fully considered the purpose and policies          underlying section 5K1.1.  This is exemplified by the court's          statement that, had Ramos not cooperated, the court "would have          given . . . a life sentence," but refrained from imposing one          because "cooperat[ion] with the government must also in some          degree be rewarded as a lesson to others that might be involved          in other criminal activities."  After pondering these          considerations and other information in the record   all of which          the court had a right to consult1   the court determined that,                                        ____________________               1The record lacks any support for the appellant's assertion          that the court inappropriately considered prior criminal conduct          in assessing the sentence.  The court appears merely to have          mentioned the prior conduct when suggesting that Ramos' criminal          history category underrepresented his prior record.  The court                                          4          under the specific circumstances of the appellant's case, no          greater leniency was warranted.  Such a decision was a judgment          call, well within the sentencing court's discretion.  See Vaknin,                                                                ___ ______          ___ F.3d at ___ [slip op. at 13].                    The appellant's second argument deserves very short          shrift.  His one-paragraph reference transgresses the "settled          appellate rule that issues adverted to in a perfunctory manner,          unaccompanied by some effort at developed argumentation, are          deemed waived."  United States v. Zannino, 895 F.2d 1, 17 (1st                           _____________    _______          Cir. 1990).  That ends the matter.                    We need go no further.  The district court's departure          decision is quite clearly a permissible exercise of the court's          informed discretion, unaccompanied by any detectable error of          law.  We will not second-guess it.                    The judgment and sentence are summarily affirmed.  See                    The judgment and sentence are summarily affirmed.                    ________________________________________________   ___          1st Cir. R. 27.1.                                        ____________________          then explained that Ramos ordinarily would have been a candidate          for an upward departure on this basis, but, given his          cooperation, the court instead weighed the underrepresentation in          considering the extent to which a downward departure was          warranted.  We discern no error.                                          5
