USCA1 Opinion

February 22, 1996

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
____________________

No. 95-1593

UNITED STATES OF AMERICA,

Appellee,

v.

SUSAN DELVECCHIO,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]

__________________________

____________________

Before

Stahl, Circuit Judge,

_____________

Aldrich, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Susan K. Howards, by appointment of

_________________

the court,

with whom Pam

___

Harris-Daley and Launie & Howards, P.A. were on brief, for appellan
____________
______________________
Margaret E. Curran, Assistant United
___________________
Sheldon

Whitehouse, United

States

States Attorney, with

Attorney,

and Zechariah

Chaf

___________________
Assistant

United

_______________
States Attorney,

were

on

brief, for

the

Uni

States.

____________________

____________________

Per Curiam.
Per Curiam.

Defendant Susan

DelVecchio brings two

challenges

to her sentence, one

jurisdiction

Defendant

followed

to entertain,

was

by

pleaded

the other

sentenced to

three years

guilty to

of which this

46

of

of which

months

supervised

three charges

court has no

was waived.

imprisonment to

be

release after

she

of cocaine

possession and

distribution.

DelVecchio's first

court's failure

challenge

to grant her

is to

the

district

a downward departure

based on

assertedly unusual circumstances -- including her history

depression,

friend

physical

and

husbands.

case

suicide attempt,

DelVecchio

outside of

the

and

sexual

emotional

argues these

"heartland" of

abuse

abuse

by

by a

family

her

former

circumstances took

cases

of

covered by

her

the

Sentencing Guidelines, see United States v. Rivera, 994 F.2d

___ ______________
______

942

(1st Cir.

1993), and

fully aware of its ability

that the

district court

to make a discretionary

departure based on these circumstances.

from

the

record that

indeed understand

hearing

defense

the

its authority

counsel's

district court stated, "I

would

experienced

justify me to

have the authority,

downward

However, it is clear

district court

to depart downward.

argument regarding

don't see any facts in

go below the

was not

Rivera,
______

After

the

here which

guideline range. .

of course . . . ."

did

. . I

The court concluded

that it did not "find the facts and circumstances which would

-22

warrant" a downward departure.

court

does

not have

court's refusal

It is settled law

jurisdiction

to exercise its

grant a downward departure.

to

that this

review the

district

discretionary authority

to

E.g., United States v. Lewis, 40

____ _____________
_____

F.3d 1325, 1345 (1st Cir. 1994).

Defendant also raises several arguments surrounding

the

government's

decision

not

to

move

for

downward

departure

pursuant to U.S.S.G.

5K1.1 (Nov.

1994).

Under

the terms of her plea agreement, the government had agreed to

consider

filing

such a

motion

if

the defendant

substantial assistance in the "investigation

of another person."

it

was

Because

agreed, was

the

provided

and prosecution

The decision whether to file the motion,

in

government

the discretion

determined

DelVecchio did provide was "unavailing"

of

that

the government.

the

assistance

and not substantial,

it declined to file the motion.

DelVecchio now argues, among other points, that the

government's refusal to file

the motion and its drafting

of

the agreement were done in "bad faith" allegedly in violation

of law and that the district court erred in refusing to grant

a downward departure.

that

court,

the

The fatal flaw in these

defendant failed

and we

United States
_____________

decline to

to

raise them

entertain them

v. Carvell, ___
_______

F.3d ___,

in

arguments is

the district

now.

___, No.

See, e.g.,
___ ____

95-1606,

slip op. at 15 (1st Cir. Jan. 19, 1996) ("[I]ssues not raised

-33

below

will not

error.").

arguments

be heard

Moreover, in

faith

establish any

now

points to

the plea agreement itself

or

Accordingly,

unless there

addition to failing

below, DelVecchio

record outside

bad

on appeal

motive

we

believe

on

the

that

part

Affirmed.
________

to raise these

nothing in

the

as even indicating

of

DelVecchio

error sufficiently obvious and

survive "plain error" review.

was plain

the

has

government.

failed

to

substantial to

-44