Alzate-Yepez v. United States ( 1996 )

USCA1 Opinion

        April 15, 1996          [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-2270



                                 ALONZO ALZATE-YEPEZ,



                                Petitioner, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                Respondent, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                      [Hon. Michael Ponsor, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge
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                            Cyr and Stahl, Circuit Judges.
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            Alonzo Alzate-Yepez on brief pro se.
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            Donald  K. Stern,  United  States Attorney,  and  Andrew  Levchuk,
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        Assistant United States Attorney, on brief for appellee.





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                      Per Curiam.   After careful review  of the parties'
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            briefs and the limited appellate record, we conclude that the



            district court  properly denied appellant's 28  U.S.C.   2255



            petition.



                      Appellant's claims fail procedurally because he did



            not raise them either at the time  of sentencing or on direct



            appeal.   See  United  States v.  Frady,  456 U.S.  152,  165
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            (1982).  To  the extent  that appellant is  arguing that  his



            trial attorney provided ineffective assistance by  failing to



            move  for a  downward  departure, that  argument lacks  merit



            because there is no legal or evidentiary support here for any



            such departure.



                      Appellant's claim for a downward departure based on



            his status  as a  deportable alien  is without  merit. First,



            appellant's statutory mandatory  minimum sentence may not  be



            reduced.    See  U.S.S.G.    5G1.1(c)(2);  United  States  v.
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            Rodriguez,  938 F.2d 319, 320  (1st Cir. 1991).   Second, the
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            district  court  stated that,  even if  it  had the  power to



            depart,  it would not have done so.   "It is by now axiomatic



            that  a  criminal defendant  cannot  ground  an  appeal on  a



            sentencing court's discretionary decision not to depart below



            the guideline sentencing range."  United States v. Pierro, 32
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            F.3d  611, 619 (1st Cir.  1994), cert. denied,  115 S.Ct. 919
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            (1995).











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                      Appellant's  claim  regarding   the  safety   valve



            provision  fails because the  district court  determined that



            appellant did  not cooperate with the  government as required



            under 18 U.S.C.   3553(f)(5) and U.S.S.G.   5C1.2.  Appellant



            has   submitted   nothing   that   challenges   that  factual



            determination.



                      Appellant's  claims regarding the amount of cocaine



            and  his role in the offense were  not raised in the petition



            addressed in this appeal,  and so we will not  consider those



            claims.  See United  States v. Jackson, 3 F.3d  506, 511 (1st
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            Cir. 1993).



                      Finally, as appellant has not pursued on appeal his



            claim that he  should have received  three, rather than  two,



            points for  acceptance of responsibility, we  deem that claim



            to have been waived.



                      Affirmed.  Loc. R. 27.1.
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