UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1170
UNITED STATES,
Appellee,
v.
LUIS SOLTERO-LOPEZ,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Boudin, Circuit Judges.
Frank Catala Morales for appellant.
Epifanio Morales, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jose A. Quiles Espinosa, Senior
Litigation Counsel, Criminal Division, and Jeanette Mercado Rios,
Assistant United States Attorney, were on brief for appellee.
December 13, 1993
BREYER, Chief Judge. Appellant Luis Soltero pled
guilty to importing cocaine (and related charges) under
circumstances for which the Sentencing Guidelines set forth
a sentencing range of approximately 20 to 25 years in
prison. See 18 U.S.C. 2; 21 U.S.C. 841(a)(1), 952,
960, 963; U.S.S.G. 2D1.1(c) (base offense level of 38);
U.S.S.G. 3B1.1(c) (two level increase for supervisory role
in the crime); U.S.S.G. 3E1.1(a) (two level reduction for
acceptance of responsibility); U.S.S.G. Ch. 5, Pt. A
(sentencing table). In light of Soltero's cooperation with
the government, the district court departed downward from
the bottom of the range and sentenced Soltero, instead, to a
prison term of 17 years. Soltero appeals, arguing that the
district court should have departed downward by more than
just three years.
Soltero, however, cannot avoid the legal fact that
the sentencing statutes (insofar as here relevant) provide
him with only a very narrow right to appeal. Although they
permit an appellate court to set aside a departure that is
"unreasonable," see 18 U.S.C. 3742(f)(2), they give the
court this power in the context of other provisions that
permit defendants to appeal only upward, and the government
to appeal only downward, departures. To be specific, the
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relevant provision permits the defendant to appeal the
reasonableness of a sentence that "is greater than the
sentence specified in the applicable guideline range . . .
." Id. 3742(a)(3). Here, Soltero's sentence is less than
the "sentence specified" in the guidelines, not "greater."
Soltero tries to avoid this problem by pointing
out that the relevant statute also permits a defendant to
appeal a sentence that "was imposed as a result of an
incorrect application of the sentencing guidelines." Id.
3742(a)(2). We have specifically held, however, that this
provision ordinarily does not give a defendant the right to
appeal from a court's refusal to depart from the guidelines.
United States v. Tucker, 892 F.2d 8, 10-11 (1st Cir. 1989).
See also United States v. Romolo, 937 F.2d 20, 22 (1st Cir.
1991) (citing cases). Nor does it apply where a court does
depart in the defendant's favor, but does not depart enough
to satisfy the defendant. United States v. Pighetti, 898
F.2d 3, 4 (1st Cir. 1990).
We use the word "ordinarily" because the ban on
review is not absolute. Rather, we have found an "incorrect
application of the sentencing guidelines" where a sentencing
court has misunderstood how the guidelines -- including the
statutes and guidelines governing departure -- are supposed
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to work. Thus, we have reviewed cases where a defendant
alleges that the district court erroneously believed it
lacked the legal power to depart in the circumstances. See,
e.g., United States v. Rivera, 994 F.2d 942, 953 (1st Cir.
1993) (remanding case for resentencing); United States v.
Amparo, 961 F.2d 288, 292 (1st Cir.) (citing cases), cert.
denied, 113 S. Ct. 224 (1992). And we are willing to assume
that we could also review, and correct, a departure decision
that reflected some other kind of fundamental
misunderstanding. See United States v. Mariano, 983 F.2d
1150, 1157 (1st Cir. 1993) (noting that a sentencing court
may not rely on constitutionally proscribed factors in
deciding to forgo or curtail a downward departure for
substantial assistance).
That assumption, however, does not help Soltero,
for the record makes clear that the district court did not
misunderstand the guidelines. Soltero says that the court
would have departed by more than three years had it not
tried to create a kind of sentencing parity among him and
his co-defendants -- an equalization effort that we have
previously held cannot provide a basis for departure.
United States v. Wogan, 938 F.2d 1446, 1448-49 (1st Cir.),
cert. denied, 112 S. Ct. 441 (1991); United States v. Carr,
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932 F.2d 67, 73 (1st Cir.), cert. denied, 112 S. Ct. 112
(1991). But that is not what the district court said it was
doing.
Rather, the sentencing judge said the following:
I am well aware of the cooperation of
the defendant. But that is one factor
the Court must take into account. I
must view the whole case, the overall
cooperation and the participation of the
defendant too. And also view him in
respect to other defendants because
there are other defendants here who did
go to trial, who did put the government
through its burden of proof. Yes, they
have a right to do that. But their
participation in the offense, a person
like Julio Luciano Mosquera, is minimal
compared to this defendant.
And that person [Mosquera] because of
the severity of the punishment of these
counts will spend a very long stretch.
And he is a person that came into the
scene just hours, hours before the
arrest. So this [Soltero] is a key
participant. This is not somebody who
came in at the last moment. I have to
give perspective to the whole case
because otherwise, we will be doing with
the Sentencing Guidelines precisely are
supposed [sic] to prevent. The
unfairness, lack of uniformity and more
sorrow. So I have taken into account
his [Soltero's] cooperation. But that's
as far as it will take him because his
cooperation cannot be seen isolated from
his role in the offense. Which was
mayor [sic] in this case. He was a key
figure in the whole conspiracy.
Reconsideration is denied.
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Nothing in this statement suggests an explicit effort to
"equalize" sentences as among defendants. The judge simply
spoke of the defendant's cooperation and the fact that (when
viewed in light of his co-conspirators' conduct) his role in
the offense was "key" and supervisory. To take account of a
cooperating offender's conduct, including his role in the
offense, when deciding the extent of a downward departure
seems to us perfectly reasonable. See Mariano, 983 F.2d at
1156-57. Soltero makes no convincing argument that such a
consideration somehow reflects a basic misunderstanding of
the guidelines.
For these reasons, the judgment of the district
court is
Affirmed.
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