USCA1 Opinion

September 5, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-2280

UNITED STATES,

Appellee,

v.

WILSON OCAMPO,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Cyr, Boudin and Lynch,

Circuit Judges.
______________

____________________

Dana A. Curhan on brief for appellant.

______________
Guillermo Gil,

United States Attorney,

Jose A.

Quiles-Espino

_____________
Senior

______________________

Litigation Counsel,

and Miguel A. Pereira,

__________________

Assistant Uni

States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.
___________

Defendant-appellant

Wilson

Ocampo

pled

guilty

21

to one count of conspiracy to distribute cocaine, see

___

U.S.C.

841(a)(1),

846, and

was

sentenced

to

the

statutory mandatory minimum term of 120 months' imprisonment,

see
___

21

U.S.C.

hearing but

841(b)(1)(A).

which

offenders

with

allows certain

low-level,

little

criminal

or

no

mandatory minimum sentences.

WL 431015

issue raised

at *1 (5th

by this

erred in failing to

under

the change

before sentencing, Congress enacted

3553(f),

1995

After

3553(f)

of plea

18 U.S.C.

non-violent drug

history

to

avoid

See United States v. Rodriguez,

___ _____________
_________

Cir. July

appeal is whether

21, 1995).

The sole

the district

court

consider Ocampo's eligibility for relief

and the

related guideline

applies the statute, U.S.S.G.

5C1.2.

provision which

Since Ocampo failed to ask the sentencing court to apply

5C1.2, the

Crim.

"plain error"

P. 52(b);

standard applies.

United States
_____________

v. Olano,
_____

See Fed.
___

113 S.

R.

Ct. 1770,

1776-79 (1993) (discussing plain error review); United States

_____________

v. Olivier-Diaz, 13 F.3d
____________

120-month sentence

Ocampo's

1, 5 (1st Cir.

imposed by the district

guideline range

of

Based on our review of the

the

court

may

have

guideline provision

any source of

1993) (same).

been

The

court was within

108-135 months'

imprisonment.

record, however, it appears as if

unaware

of

the

and mistakenly believed

authority to impose

newly-adopted

that it

lacked

a lesser sentence

within

the

applicable

guideline

McAndrews, 12 F.3d
_________

circumstances

range.

Cf.
___

United States
______________

273, 276 n.2 (1st Cir.

under

which

appellate

v.

1993) (discussing

court

may

review

discretionary decision not to depart).

Strictly

literal

sense

speaking,

for

it

is

district

not "plain

court

to

error"

ignore a

in

the

relief

provision where the provision's

showing

of

specific

defendant to

the

But in criminal cases we

possible defects,

injustice;

where

burden is

on

the

adduce those facts, and where the defendant has

failed to do so.

notice

facts,

application depends upon the

whether or

and in this case

have authority to

not evident,

it is quite

to avoid

possible that both

the defendant and the court were unfamiliar with the recently

adopted relief provision.

Cf. United States

___ _____________

F.3d 4, 7 (1st Cir. 1995).

Under the circumstances, we think

that justice

remanding

in

would be

order

served by

to

sentence and remand the

vacating the sentence

permit the

required showing, if he can.

v. Collins, 60
_______

defendant

to

and

make the

Accordingly, we vacate Ocampo's

case so that the district

court can

decide whether the conditions of

Vacated and remanded.

_____________________

5C1.2 are met.

See Loc. R. 27.1.

___

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