Alzate-Yepez v. United States

USCA1 Opinion









April 15, 1996 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2270

ALONZO ALZATE-YEPEZ,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael Ponsor, U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge ___________
Cyr and Stahl, Circuit Judges. ______________

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Alonzo Alzate-Yepez on brief pro se. ___________________
Donald K. Stern, United States Attorney, and Andrew Levchuk, ________________ _______________
Assistant United States Attorney, on brief for appellee.


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Per Curiam. After careful review of the parties' __________

briefs and the limited appellate record, we conclude that the

district court properly denied appellant's 28 U.S.C. 2255

petition.

Appellant's claims fail procedurally because he did

not raise them either at the time of sentencing or on direct

appeal. See United States v. Frady, 456 U.S. 152, 165 ___ ______________ _____

(1982). To the extent that appellant is arguing that his

trial attorney provided ineffective assistance by failing to

move for a downward departure, that argument lacks merit

because there is no legal or evidentiary support here for any

such departure.

Appellant's claim for a downward departure based on

his status as a deportable alien is without merit. First,

appellant's statutory mandatory minimum sentence may not be

reduced. See U.S.S.G. 5G1.1(c)(2); United States v. ___ ______________

Rodriguez, 938 F.2d 319, 320 (1st Cir. 1991). Second, the _________

district court stated that, even if it had the power to

depart, it would not have done so. "It is by now axiomatic

that a criminal defendant cannot ground an appeal on a

sentencing court's discretionary decision not to depart below

the guideline sentencing range." United States v. Pierro, 32 _____________ ______

F.3d 611, 619 (1st Cir. 1994), cert. denied, 115 S.Ct. 919 ____________

(1995).





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Appellant's claim regarding the safety valve

provision fails because the district court determined that

appellant did not cooperate with the government as required

under 18 U.S.C. 3553(f)(5) and U.S.S.G. 5C1.2. Appellant

has submitted nothing that challenges that factual

determination.

Appellant's claims regarding the amount of cocaine

and his role in the offense were not raised in the petition

addressed in this appeal, and so we will not consider those

claims. See United States v. Jackson, 3 F.3d 506, 511 (1st ___ ______________ _______

Cir. 1993).

Finally, as appellant has not pursued on appeal his

claim that he should have received three, rather than two,

points for acceptance of responsibility, we deem that claim

to have been waived.

Affirmed. Loc. R. 27.1. ________





















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