September 5, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2280
UNITED STATES,
Appellee,
v.
WILSON OCAMPO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Cyr, Boudin and Lynch,
Circuit Judges.
Dana A. Curhan on brief for appellant.
Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa,
Senior Litigation Counsel, and Miguel A. Pereira, Assistant United
States Attorney, on brief for appellee.
Per Curiam. Defendant-appellant Wilson Ocampo pled
guilty to one count of conspiracy to distribute cocaine, see
21 U.S.C. 841(a)(1), 846, and was sentenced to the
statutory mandatory minimum term of 120 months' imprisonment,
see 21 U.S.C. 841(b)(1)(A). After the change of plea
hearing but before sentencing, Congress enacted 18 U.S.C.
3553(f), which allows certain low-level, non-violent drug
offenders with little or no criminal history to avoid
mandatory minimum sentences. See United States v. Rodriguez,
1995 WL 431015 at *1 (5th Cir. July 21, 1995). The sole
issue raised by this appeal is whether the district court
erred in failing to consider Ocampo's eligibility for relief
under 3553(f) and the related guideline provision which
applies the statute, U.S.S.G. 5C1.2.
Since Ocampo failed to ask the sentencing court to apply
5C1.2, the "plain error" standard applies. See Fed. R.
Crim. P. 52(b); United States v. Olano, 113 S. Ct. 1770,
1776-79 (1993) (discussing plain error review); United States
v. Olivier-Diaz, 13 F.3d 1, 5 (1st Cir. 1993) (same). The
120-month sentence imposed by the district court was within
Ocampo's guideline range of 108-135 months' imprisonment.
Based on our review of the record, however, it appears as if
the court may have been unaware of the newly-adopted
guideline provision and mistakenly believed that it lacked
any source of authority to impose a lesser sentence within
the applicable guideline range. Cf. United States v.
McAndrews, 12 F.3d 273, 276 n.2 (1st Cir. 1993) (discussing
circumstances under which appellate court may review
discretionary decision not to depart).
Strictly speaking, it is not "plain error" in the
literal sense for a district court to ignore a relief
provision where the provision's application depends upon the
showing of specific facts, where the burden is on the
defendant to adduce those facts, and where the defendant has
failed to do so. But in criminal cases we have authority to
notice possible defects, whether or not evident, to avoid
injustice; and in this case it is quite possible that both
the defendant and the court were unfamiliar with the recently
adopted relief provision. Cf. United States v. Collins, 60
F.3d 4, 7 (1st Cir. 1995). Under the circumstances, we think
that justice would be served by vacating the sentence and
remanding in order to permit the defendant to make the
required showing, if he can. Accordingly, we vacate Ocampo's
sentence and remand the case so that the district court can
decide whether the conditions of 5C1.2 are met.
Vacated and remanded. See Loc. R. 27.1.
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