USCA1 Opinion
[NOT FOR PUBLICATION]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. _____________ _______ _____
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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. & 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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