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USCA1 Opinion
July 7, 1993
[Not for Publication]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2094
UNITED STATES OF AMERICA,
Appellee,
v.
ABDULLAH SAUBAR, a/k/a
AUBURN GLENN JOHNSON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Selya, Cyr and Stahl,
Circuit Judges.
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Catherine C. Czar for appellant.
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A. John Pappalardo, United States Attorney, and A. Clayton
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Spencer, Assistant United States Attorney, for appellee.
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Per Curiam. Abdullah Saubar appeals the nine-year
Per Curiam.
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prison sentence imposed following his conviction as a felon in
possession of a firearm under 18 U.S.C. 922(g)(1), 924(e).
Section 924(e) mandates a minimum sentence of fifteen years
unless the government elects to exercise its discretionary
authority, under 18 U.S.C. 3553(e)1 and U.S.S.G. 5K1.1, to
recommend a downward departure. The government agreed to
recommend a six-year downward departure from the mandatory
fifteen-year minimum. Its promise was conditioned on (1)
Saubar's "specific agreement" to render "substantial assistance"
to the government in other criminal investigations and prosecu-
tions, and (2) Saubar's agreement not to "argue" that the
district court impose less than the nine-year sentence recom-
mended by the government. At sentencing, the government recom-
mended the six-year downward departure as promised and the
district court approved the recommendation.
Although Saubar concedes that we lack appellate
jurisdiction of a sentencing appeal brought by a defendant who
seeks to challenge the extent of a downward departure, see, e.g.,
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United States v. Pighetti, 898 F.2d 3, 4 (1st Cir. 1990), he
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argues for remand on the ground that the district court misappre-
hended its sentencing authority, as well as the criteria for
quantifying its downward departure under section 3553(e). See
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1Section 3553(e) provides that, "[u]pon motion of the
Government, the court shall have the authority to impose a
sentence below a level established by statute as minimum sentence
so as to reflect a defendant's substantial assistance in the
investigation or prosecution of another person who has committed
an offense." 18 U.S.C. 3553(e).
United States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert.
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denied, 113 S. Ct. 224 (1992). Once the government "opened the
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door" by making its section 3553(e) motion, the argument goes,
the sentencing court was empowered to enlarge the downward
departure to reflect Saubar's "extraordinary physical
impairment."2 See U.S.S.G. 5H1.4.3
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It is well settled in this circuit that a sentencing
court may not depart below a mandatory minimum sentence unless
the government makes a "substantial assistance" motion pursuant
to 18 U.S.C. 3553(e) or U.S.S.G. 5K1.1. See United States v.
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Mazzaferro, 907 F.2d 251, 254 (1st Cir. 1990); see also United
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States v. Mariano, 983 F.2d 1150, 1155 (1st Cir. 1993). Saubar
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is bound by the terms under which the government agreed to
exercise its discretionary power to make its indispensable
recommendation. Acknowledging his voluntary agreement not to
"argue for a lower sentence," Saubar says that he benignly
presented "detailed evidence" of his health problems to the
district court, but never actively "argued" for a lower sentence
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on the basis of his physical condition. At most, he contends,
any request for a greater departure was "implicit."
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2Saubar suffers from a pre-offense medical condition
requiring kidney dialysis three times a week. At sentencing, the
district court expressly acknowledged the seriousness of Saubar's
physical condition.
3Section 5H1.4 provides that, though "physical condition"
normally is not relevant to the sentencing decision, "an extraor-
dinary physical impairment may be a reason to impose a sentence
below the applicable guideline range; e.g., in the case of a
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seriously infirm defendant, home detention may be as efficient
as, and less costly than, imprisonment." U.S.S.G. 5H1.4.
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No matter which way Saubar turns, however, his claim is
stymied. If he presented his "physical impairment" argument to
the district court at sentencing, even implicitly, he breached
his plea agreement with the government and was not entitled to
any downward departure. If he did not raise his precatory
5H1.4 argument at sentencing, it is waived. United States v.
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Figueroa, 976 F.2d 1446, 1462 n.22 (1st Cir. 1992), cert. denied,
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113 S. Ct. 1346 (1993); United States v. Shattuck, 961 F.2d 1012,
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1015 (1st Cir. 1992); see United States v. Foster, 988 F.2d 206,
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209-10 (D.C. Cir. 1993) (sentencing claim waived where defendant
merely recited a list of mitigating factors that the district
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court should consider, but did not tie evidence to a particular
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legal ground for a greater departure i.e., 3B1.2).
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Moreover, having voluntarily accepted the benefit of the promise
scrupulously honored by the government, Saubar surely cannot
demonstrate a "miscarriage of justice" or the "fundamental
unfairness" required on "plain error" review. See United States
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v. Montoya, 967 F.2d 1, 5 (1st Cir.) (waived sentencing issues
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reviewed only for "fundamental unfairness"), cert. denied, 113 S.
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Ct. 507 (1992). As it "clearly appears that no substantial
question is presented," the appeal is summarily dismissed
pursuant to Local Rule 27.1.
Dismissed.
Dismissed
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Document Info
Docket Number： 92-2094
Filed Date： 7/7/1993
Precedential Status： Precedential
Modified Date： 9/21/2015