USCA1 Opinion

April 23, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

____________________

No. 95-1831

UNITED STATES OF AMERICA,

Appellee,

v.

THOMAS C. BOOTH,

Defendant, Appellant.

_____________________

No. 95-1838

UNITED STATES OF AMERICA,

Appellee,

v.

LISA BOOTH, a/k/a LISA VISCONE,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

___________________

____________________

Before

Lynch, Circuit Judge,

_____________

Aldrich and Bownes, Senior Circuit Judges.

_____________________

____________________

____________________

Sheila A.

Cook with whom

Law Offices of

William Maselli was

_______________

_______________________________

brief for appellant Thomas C. Booth.

E. James Burke and Bell & Burke, P.A.
______________
__________________

on brief for appellant L

Booth, a/k/a Lisa Viscone.

Margaret D. McGaughey,
______________________

Assistant

United States

Attorney,

whom Jay A. McCloskey, United States Attorney, and George T. Dilwor

________________ ______________________
________________
Assistant United States Attorney, were on brief for appellee.
F. Mark Terison, Assistant
________________

United States

Attorney,

McCloskey, United States Attorney, on brief for appellee.

_________ ______________________

____________________

____________________

and Jay
____

ALDRICH,

Booth

and

Senior Circuit Judge.

_____________________

Thomas

and Lisa

each pled guilty to one count of conspiracy to possess

distribute in

violation

of 21

excess of

U.S.C.

50 grams

of cocaine

base, in

841(a)(1), 841(b)(1)(A)

and 846,

and now appeal their respective sentences.

We affirm in both

cases.

Thomas was, concededly,

a "career offender"

under

4B1.1

offense

of

the Sentencing

level of 37.

Guidelines,

The court

which

prescribed an

granted him

a three level

reduction for acceptance of responsibility, under

3E1.1, for

a total

yielded

adjusted

offense

guideline sentencing

5K1.1

of the

range of

Guidelines, the

percent departure below

based on

level

of

34,

which

262-327 months.

Pursuant to

government recommended

the low end of

a 20

the guideline range,

Thomas' forthright cooperation.

The court agreed,

sentencing Thomas to 204 months, or 17 years, as recommended.

Thomas

sought

having had an allegedly

the court denied.

it

had

no

further

downward

departure for

minor role in the conspiracy,

which

He claims the court incorrectly ruled that

authority

to

depart

from

career

offender

guideline range on the

the offense.

basis of a relatively lesser

Where the court's departure

been affected by a mistaken view of the law,

our

jurisdiction to review, de
__

Webster,
_______

54

F.3d 1,

4 (1st

novo.
____

Cir.

-3-

See
___

role in

decision may have

it falls within

United States v.
_____________

1995); United States v.

______________

Gifford, 17 F.3d 462, 473 (1st Cir. 1994).

_______

Thomas

stakes

his

claim

on

statement that

"defendant's role in the

in determining

the appropriate

Chapter

Three, Part

U.S.S.G.

level

3B1.2

basis

(allowing

for mitigating

general truism

B (Role

permitted

departures

role).1

that establishes

exists an

not found in

bases for

are

sentence,"

in the

little

Especially should

of course

to

offense

from this

allowed,

on the

this be so

Chapter Five, where

departure are delineated.

but

the

Unspecified

only where

aggravating or mitigating circumstance

to

See, e.g.,
___ ____

authority to depart

Part K of

policy

which refers

Offense).

We garner

offense is relevant

downward adjustment

of a defendant's role.

when it is

5H1.7,

"there

of a kind,

or to

the

a degree, not

adequately taken into

Sentencing Commission

5K2.0;

18 U.S.C.

amply considered,

in

3553(b).

consideration by

formulating the

Role-in-the-offense

see generally U.S.S.G.

___ _________

"minor" and "minimal"

provided for.

3B1.2 and comment. (n.1

unless a

defendant's role

has been

Ch.3, and downward

adjustment for both

See
___

guidelines."

role specifically

and 2).

falls outside the

Thus,

"heartland" of

____________________

1.

Over

Thomas'

objection, the

court

ruled

ineligible for a downward adjustment under

that he

was

3B1.2 because the

career offender guideline allows but a single adjustment, for

acceptance
4B1.1;
1994).
his

of

responsibility,

United States v. McCoy,

_____________
_____
By way of

disagreement,

pursuant

23 F.3d 216,

a footnote, Thomas
but

forgoes

to

3E1.1.

See
___

218 (9th Cir.

continues to register

briefing

the

issue.

We

therefore deem it waived.

-4-

cases covered by this

to

the

statutory

comment., departure

provision "in a way that

purposes

of

is foreclosed.2

is important

sentencing,"

Thomas makes

5K2.0

and

no claim

that his does; nor do we believe he successfully could, given

the unequivocally

stated statutory

purpose to "assure

that

certain career

at

or

near

U.S.S.G.

994(h))

v.

offenders receive a sentence

the

maximum

4B1.1,

term

comment.

authorized

(backg'd)

922

F.2d 50,

53

(1st

[by

statute]."

(citing

(internal quotations omitted).

Norflett,
________

of imprisonment

28

U.S.C.

See United States

___ _____________

Cir. 1990)

(Congress

intended there to be "precious little room to maneuver" below

the statutory maximum for career offenders).

then,

we find little regard

offender's

relative

accordance

with

994(h),

the

role

in the Guidelines

in

congressional

career

____________________

Unsurprisingly,

offender

his latest

directive,

provision

for a career

enterprise.

see
___

28

In

U.S.C.

"focuses on

the

2.
643

Thomas claims United States v. Valdez-Gonzalez, 957

_____________
_______________
(9th Cir.

1992),

stands

downward adjustment under

because defendants were

for

the

contrary.

3B1.2 was also

F.2d
There,

inapplicable, not

career offenders,

but because

they

were each the only participants in the offenses to which they

pled guilty.
departure

Id.
___

for

at 648.

minimal

Sentencing Commission had

role

in a criminal

In nonetheless

role,

the

court

scheme extending

beyond the
______

5K2.0

but a "mule"

much larger criminal

beyond the

the

offense at

committed.

operation than

the

Id. at 650.
___

Role

conspiracy charged is

here, and Valdez-Gonzalez is

_______________
event.

that

departure where each defendant was

single substantive offense he

in a scheme

ruled

not adequately considered relative

hand, permitting a
in a

allowing downward

not at

issue

of questionable validity in any

See United States v. Webster, 996 F.2d 209, 211 (9th

___ _____________
_______

Cir. 1993).

-5-

recurrence of offenses

rather than on

most

United States v. Richardson, 923 F.2d

_____________
__________

13, 16

recent offense."

the specifics of

the

-6-

(2d Cir. 1991).

Thus, even properly construed as a claim for

departure under

5K2.0, Thomas' pitch falls short.

Lisa

Booth

faced

20-year

mandatory

minimum

sentence, based

U.S.C.

court

prior

841(b)(1)(A).

halved her

assistance.

the

on a

felony drug

Upon the

sentence for

See U.S.S.G.
___

5K1.1.

offense, under

21

government's

motion, the

cooperation and

substantial

She complains, first, that

court took the 20-year mandatory minimum as its point of

departure, rather

months

history.

calculated

Had the

than the

from

guideline range

her

offense

court ignored the

level

of

and

100 to

125

criminal

statutory minimum

and

instead taken the calculated range as the guideline sentence,

its departure

years.

would have produced a sentence

The simple answer

is that under

statutorily required minimum sentence . . .

maximum of the

closer to five

the Guidelines, "a

greater than the

applicable guideline range . . . shall be the

_____

guideline

sentence."

The remainder

U.S.S.G.

of her complaint

5G1.1(b)

(emphasis added).

quibbles with the

the court's departure, over which we

extent of

lack jurisdiction.

United States v. Pighetti, 898 F.2d 3, 4 (1st Cir. 1990).

_____________
________

Affirmed.
_________

-7-

See
___