DocketNumber： 95-2270
Filed Date： 4/15/1996
Status： Precedential
Modified Date： 9/21/2015
April 15, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2270
ALONZO ALZATE-YEPEZ,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael Ponsor, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge ___________
Cyr and Stahl, Circuit Judges. ______________
____________________
Alonzo Alzate-Yepez on brief pro se. ___________________
Donald K. Stern, United States Attorney, and Andrew Levchuk, ________________ _______________
Assistant United States Attorney, on brief for appellee.
____________________
____________________
Per Curiam. After careful review of the parties' __________
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 ___ ______________ _____
(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. ___ ______________
Rodriguez, 938 F.2d 319, 320 (1st Cir. 1991). Second, the _________
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 _____________ ______
F.3d 611, 619 (1st Cir. 1994), cert. denied, 115 S.Ct. 919 ____________
(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 ___ ______________ _______
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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