USCA1 Opinion

October 28, 1996

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_______________

No.

95-1672

UNITED STATES,
Appellee,

v.

ZAIDA GUTIERREZ,

Defendant, Appellant.

_____________________

ERRATA SHEET

The opinion of this

Court issued on October 9, 1996 is amended

follows:

On page 2, line 15, change "form" to "from"

October 10, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1672

UNITED STATES,

Appellee,

v.

ZAIDA GUTIERREZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Selya and Stahl, Circuit Judges.
______________

____________________

Benicio Sanchez Rivera,

______________________
Nogueras-Castro,
_______________

Assistant

Federal Public Defender, and Miguel A

_________
Federal

Public Defender,

on

brief

appellant.
Guillermo Gil,
_____________
Senior Litigation

United States Attorney,

Counsel, Edwin O. V zquez,
________________

Attorney, and Nelson P rez-Sosa,

_________________

Jos A. Quiles-Espino
______________________

Assistant United Sta

Assistant United States Attorney,

brief for appellee.

____________________

____________________

Per Curiam.
__________

Defendant pled guilty

seventy-month term of

U.S.C.

court

841(a)(1).

erred

guidelines

in

imprisonment for a

violation of 21

On appeal she argues that

refusing

sentencing range

After careful

and was sentenced to

review of the

to

depart

pursuant to

the district

downward

U.S.S.G.

parties' briefs and

from

the

5K1.1.

the entire

record below, we find no error.

Contrary

to the

defendant's assertion,

the government

had

not

promised,

agreement,

from

the

as

to file a

guidelines.

term

of

Although

the

originally

defendant's

substantial cooperation

the

actual intent to

government,

1994),

plea

filed by

departure

under

for

the

the

5K1.1 and

18

corrected the motion orally to

request only a

statutory minimum sentence pursuant

filing of a U.S.S.G.

Cir.

motion

recommended

3553, the government

reflect its

defendant's

5K1.1 motion for a downward departure

government

U.S.C.

the

to

departure from

3553.

As the

5K1.1 motion is discretionary with the

United States v. Raineri,

_________________________

cert. denied,
____________

115

42 F.3d 36,

S.Ct. 2286

(1995),

44 (1st

it was

within the government's discretion to correct its motion from

one seeking departure from both the statutory minimum and the

guidelines to

Absent

one seeking

5K1.1

motion,

government to file such a

is

based

on an

departure from the

binding

statute only.

obligation

motion, or a failure to

impermissible

motive,

on

the

file that

the district

court

-2-

lacked authority to

depart below the

guideline range.

See

___

Wade v. United States, 504 U.S. 181, 185-86 (1992).

______________________

the

defendant could not show

the existence of

Because

any of these

factors, the district court properly held that it was without

the

power

to depart

pursuant to U.S.S.G.

Affirmed.
________

from

the

5K1.1.

See Loc. R. 27.1.

___

guideline sentencing

range

-3-