United States v. DelVecchio, 77 F.3d 460, 1st Cir. (1996)

77 F.
3d 460
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
UNITED STATES of America, Appellee,
v.
Susan DELVECCHIO, Defendant, Appellant.
No. 95-1593.
United States Court of Appeals, First Circuit.

Feb. 22, 1996.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF RHODE ISLAND [Hon. Raymond J. Pettine, Senior U.S.
District Judge]
Susan K. Howards, by appointment of the court, with whom Pamela
Harris-Daley and Launie & Howards, P.A. were 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 the United States.
D.R.I.
AFFIRMED.
Before STAHL, Circuit Judge, ALDRICH, Senior Circuit Judge, and
LYNCH, Circuit Judge.
PER CURIAM.
Defendant Susan DelVecchio brings two challenges to her sentence, one of

which this court has no jurisdiction to entertain, the other of which was waived.
Defendant was sentenced to 46 months imprisonment to be followed by three
years of supervised release after she pleaded guilty to three charges of cocaine
possession and distribution.
DelVecchio's first challenge is to the district court's failure to grant her a

downward departure based on assertedly unusual circumstances--including her
history of depression, a suicide attempt, sexual abuse by a family friend and
physical and emotional abuse by her former husbands. DelVecchio argues these
circumstances took her case outside of the "heartland" of cases covered by the
Sentencing Guidelines, see United States v. Rivera, 994 F.2d 942 (1st
Cir.1993), and that the district court was not fully aware of its ability to make a
discretionary downward departure based on these circumstances. However, it is
clear from the record that the experienced district court did indeed understand
its authority to depart downward. After hearing defense counsel's argument
regarding Rivera, the district court stated, "I don't see any facts in here which
would justify me to go below the guideline range.... I have the authority, of
course...." The court concluded that it did not "find the facts and circumstances
which would warrant" a downward departure. It is settled law that this court
does not have jurisdiction to review the district court's refusal to exercise its
discretionary authority to grant a downward departure. 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 a 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 provided substantial assistance
in the "investigation and prosecution of another person." The decision whether
to file the motion, it was agreed, was in the discretion of the government.
Because the government determined that the assistance DelVecchio did provide
was "unavailing" 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. The fatal flaw in these arguments is that the defendant
failed to raise them in the district court, and we decline to entertain them now.
See, e.g., United States v. Carvell, --- F.3d ---, ---, No. 95-1606, slip op. at 15
(1st Cir. Jan. 19, 1996) ("[I]ssues not raised below will not be heard on appeal
unless there was plain error."). Moreover, in addition to failing to raise these
arguments below, DelVecchio now points to nothing in the record outside the
plea agreement itself as even indicating bad faith or motive on the part of the
government. Accordingly, we believe that DelVecchio has failed to establish
any error sufficiently obvious and substantial to survive "plain error" review.
Affirmed.

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77 F.

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

United States Court of Appeals, First Circuit.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

Defendant Susan DelVecchio brings two challenges to her sentence, one of

DelVecchio's first challenge is to the district court's failure to grant her a

Defendant also raises several arguments surrounding the government's decision

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