USCA1 Opinion

January 10, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1787

UNITED STATES,

Appellee,

v.

JOSE OMAR SANTA,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Stahl and Lynch, Circuit Judges.
______________

____________________

Edward F. St. Onge on brief for appellant.

__________________
Sheldon Whitehouse,
__________________

United States

Attorney, and

Edwin J. Ga
____________

Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.
___________

Defendant-appellant Jose

Omar Santa

("Santa") appeals

objects to

his sentence

the conversion

into drug amounts

of money

for the purposes

offense

level.

refusal

to depart

account of

on two grounds.

Second,

defendant's status

or half-way houses.

the guideline

as a deportable

base

court's

sentence on

alien, which

prisons

We affirm.

The Commentary

Conversion of Cash
__________________

to

Section

States Sentencing Guidelines provides

determining the

the district

for assignment to low-security

I.

specified in the

he

his apartment

of calculating his

he contests

downward from

makes him ineligible

found at

First,

counts of conviction

offense level.

2D1.1

of

the

United

that drug amounts

not

may be considered

See Comment
___

n. 12.

in

To be

included, the drug amounts

of

conduct

or

conviction."

(1st Cir.

must be "part of the

common scheme

United States
_____________

1989).

to treat cash as

or

plan

v. Gerante,
_______

as

same course

the offense

891 F.2d

of

364, 369

The Guidelines permit the sentencing court

the equivalent of an estimated

quantity of

drugs in arriving at a base offense level. Comment note 12 to

2D1.1 provides, in relevant part, as follows:

Where there is no
or the amount
reflect
offense,

the

drug seizure

seized does
scale

the

court

of

not
the
shall

approximate the quantity of the

controlled substance. In making
this

determination,

may consider,

the court

for example, the

-2-

price

generally

obtained

for

the controlled substance, . . .

On appeal,

Santa argues that there

to support the government's

cash was wrapped

statement at sentencing that the

in tin foil and located under

also argues that the cash "represented

already

object

counted."

to

At

account

the bed.

He

the proceeds of sales

sentencing, however,

the government's

is no evidence

of

Santa did

not

the packaging

and

location of the cash.

raised for the

first time on

Jackson, 3 F.3d
_______

Santa

has

Therefore, this objection may

appeal.

506, 511 (1st Cir.

failed to

offer an

an

amount

of

money

transactions that are part

the

charged

conduct

offense,

attributable

See United States v.

___ ______________

1993).

Even

"[T]he

represents

to

therefore

the

proceeds

represents

defendant,

of the

determination

of the same course of

and

on appeal,

alternative account

packaging and location of the cash.

that

not be

is

from

drug

conduct as

relevant

predominantly

factual and reviewable only for clear error." Jackson, 3 F.3d

_______

at 510.

In

this case,

the sentencing

were not clearly erroneous.

judge's conclusions

The court was free to disbelieve

Santa's claim that the cash represented savings for a trip to

Colombia.

claim.

the

The packaging and location of the cash belied that

Similarly, given the almost three-month lapse between

previous sales

of drugs

and the

seizure of

cash, the

rejection of Santa's claim that the cash represented proceeds

from the previous sales is not clearly erroneous.

-3-

"The judge

present

at the sentencing hearing is in the best position to

determine

the credibility of the witnesses and the source of

the currency, . . ."

Jackson, 3 F.3d at 512.

_______

II.

Santa's

Downward Departure
__________________

second argument

on

appeal

is

sentencing court erred in denying his request for

departure

from

axiomatic that

the guideline

a criminal defendant cannot

on a sentencing court's

below

the guideline

Pierro, 32
______

U.S.

sentence.

"It

that

the

a downward

is

by

now

ground an appeal

discretionary decision not to depart

sentencing

F.3d 611, 619 (1st

, 115 S.Ct. 919 (1995).

range."

United States
_____________

Cir. 1994), cert. denied,

_____ ______

v.

__

"Appellate jurisdiction does

___

attach, however, where the decision not to depart is based on

the sentencing court's assessment of its lack of authority or

power

to depart."

United States v. Morrison,

______________
________

46 F.3d 127,

130 (1st Cir. 1995).

Although the sentencing court indicated that it was

skeptical

about its

Santa's status as a

authority

the basis

to depart.

The court

of

the sole

clearly stated

"even if I were permitted to make a downward departure,

I wouldn't do

depart

on

deportable alien, that was not

ground for its failure

that

to depart

was

departure

it on this basis."

the

was not

result

of a

appropriate,

Therefore,

discretionary

even if
____ __

the failure to

decision

it was

that

permitted.

-4-

Accordingly,

this

court lacks

jurisdiction

to

review the

sentencing court's departure decision.

The sentence

27.1.

is summarily
_________

affirmed.
________

See
___

Loc. R.

-5-