UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

VIZCAINO, SANTOS D.


99-3033a

D.C. Cir. 2000


*	*	*


Tatel, Circuit Judge: Sentenced for possessing with intent  to
distribute both powder and crack cocaine, appellant argues  that the
district court erred by failing to recognize its authori- ty to depart
downward pursuant to section 5K2.0 of the  United States Sentencing
Guidelines on the ground that the  crack affected his sentence so
significantly as to take it  outside of the Guidelines' "heartland."
Because appellant  failed to request such a downward departure in the
district  court, and because the district court did not plainly err by
 failing to grant it sua sponte, we affirm.


I


A grand jury indicted appellant Santos Vizcaino for pos- sessing with
intent to distribute fifty grams or more of crack  cocaine and for
possessing with intent to distribute powder  cocaine. Pleading guilty
to the powder cocaine count, Vizcai- no avoided the ten-year statutory
mandatory minimum sen- tence that would have applied had a jury
convicted him on the  crack cocaine charge. As a condition of dropping
the crack  cocaine charge, the government required Vizcaino to accept 
responsibility for approximately 185 grams of crack cocaine.  Under
the relevant Sentencing Guideline, a criminal defen- dant's sentence
turns not only on the quantity of drugs  involved in the offense of
conviction, but also on "all acts and  omissions ... that were part of
the same course of conduct  or common scheme or plan as the offense of
conviction."  United States Sentencing Guidelines s 1B1.3(a)(2).
Because  the Guidelines treat offenses involving crack more severely 
than those involving only powder cocaine, Vizcaino's accep- tance of
responsibility for crack dramatically affected his  potential
sentence. Had his sentence been determined only  by the amount of
powder cocaine to which he pled guilty, the  Guideline range would
have been 27-33 months. With the  crack, his Guideline range increased
to 121-151 months.  Recognizing the crack's impact on the potential
sentence, the  district court informed Vizcaino at the plea colloquy
that his  "lawyer and the government's lawyer have agreed that the 


Guideline range which is going to control the sentence that I  impose
on you is, at bottom, 121 months and at top, 151  months." Asked if he
understood, Vizcaino answered, "Yes."  The district court accepted
Vizcaino's plea.


At sentencing, Vizcaino's counsel asked the district court to  depart
below the 121-151 month Guideline range, explaining  only that "Mr.
Santos Vizcaino has some material he wishes  to share ... which we
think may take it below the Guide- lines." Vizcaino then told the
court this: "I want to explain  to you a few months ago I did sign a
plea agreement to accept  responsibility for powder cocaine. And based
on this, I think  that I should be sentenced for powder cocaine, which
would  change the category within the guidelines that were approved 
by the Congress...." Vizcaino spoke at length (for five or  six
transcript pages) about his children, his wife, his drug use,  and the
impact that his imprisonment was having on his  children. The district
court, apparently responding to Vizcai- no's earlier statement that he
had accepted responsibility for  powder cocaine, then pointed out: "In
your plea agreement,  in paragraph 3, you not only acknowledge
responsibility for  the powder cocaine that formed the basis of the
charge to  which you entered a plea of guilty, but you also
acknowledged  that you were accountable for 185 grams of cocaine base,
or  crack cocaine. And the government's evidence would have  shown
that that represented relevant conduct." Vizcaino  responded: "Your
Honor, I believe my lawyer has a copy of  the plea agreement in which
I said that I was held accounta- ble for, I think, 200 grams of
cocaine powder. And over  here...." The district court interrupted:
"You were ac- countable for 223 grams of cocaine powder and 185 grams
of  crack. In any event, the Guidelines leave me no choice 
whatsoever, Mr. Vizcaino." Vizcaino explained that he had  entered
into the plea in order to avoid the statutory mandato- ry minimum
sentence for crack cocaine, to which the district  court replied:
"There is not only the mandatory minimum  under the statute, but there
are the Guidelines, which I must  follow, and the Guidelines are, for
my purposes, also manda- tory. I cannot depart from the Guidelines


Concluding that "there is nothing in this record which,  under the law,
as it has been interpreted by our court of  appeals, entitles me to
depart from the Guideline range," the  district court sentenced
Vizcaino to 121 months imprison- ment, the lowest sentence in the
Guideline range. "Now let  me tell you this," the district court


This is one of those cases in which, in my judgment, the  Guidelines
operate to produce an unjust result. Were I  at liberty, I would
sentence you to a somewhat lesser  term of imprisonment, but I do not
have that option....  I have several highly complimentary letters
having to do  with Mr. Vizcaino, and they would, in the ordinary cir-
cumstances, be highly persuasive, were I at liberty to  impose a
lesser sentence than I am. I am going to direct  that these be filed
and made part of the record in this  case so that the court of appeals
will have them available  to them when they determine whether or not I
am  correct in my determination that there is no basis for a 
departure from the guidelines in this case.


Vizcaino now appeals from the 121-month sentence.


II


This appeal requires us to return to an oft-litigated issue:  the scope
of a district court's authority to depart downward  under section
5K2.0 of the United States Sentencing Guide- lines. Section 5K2.0
provides: "[T]he sentencing court may  impose a sentence outside the
range established by the  applicable guidelines, if the court finds
'that there exists an  aggravating or mitigating circumstance of a
kind, or to a  degree, not adequately taken into consideration by the
Sen- tencing Commission in formulating the guidelines that should 
result in a sentence different from that described.' " United  States
Sentencing Guidelines s 5K2.0 (quoting 18 U.S.C.  s 3553(b)). The
Supreme Court has explained that district  courts may depart under
section 5K2.0 on the basis of a  particular factor not specifically
mentioned in the Guidelines  if, "considering the structure and theory
of both relevant  individual guidelines and the Guidelines taken as a


it is sufficient to take the case out of the Guideline's heart- land."
Koon v. United States, 518 U.S. 81, 96 (1996) (internal  citation and
quotation marks omitted).


Citing cases from other circuits, Vizcaino maintains that the  district
court erred by failing to recognize that where consid- eration of
relevant conduct, i.e., conduct different from but  related to an
offense of conviction, drastically affects a sen- tence, a district
court has authority to depart downward.  See, e.g., United States v.
Lombard, 72 F.3d 170, 183-87 (1st  Cir. 1995) (holding that trial
court had authority to depart  under section 5K2.0 where consideration
of relevant conduct  raised defendant's sentence from 262 months to
mandatory  life imprisonment); United States v. Concepcion, 983 F.2d 
369, 385-89 (2d Cir. 1992) (remanding to trial court to consid- er
whether impact of relevant conduct, which increased defen- dant's
sentence from 24-30 months to 262-327 months, war- ranted downward
departure under section 5K2.0). Although  this circuit has never
considered whether district courts have  authority to depart on this
ground, Vizcaino argues that his  sentence presents a compelling case
for such a departure.  His 121-month sentence was well over four times
the low end  of the 27-33 month range that would have been applicable 
had he been sentenced only for the powder cocaine included  in his
plea agreement. As Vizcaino observes, moreover, the  Guidelines
offense level and resulting sentencing range were  determined
exclusively by the 185 grams of crack; the co- caine powder that
Vizcaino possessed with intent to distribute  and that formed the
basis of the offense to which he pled  guilty had absolutely no impact
on his sentence. Because of  this, and given the district court's
clearly expressed concern  about the length of Vizcaino's sentence,
the district court  might have considered departing downward had
Vizcaino  made a section 5K2.0 argument. But see United States v. 
Lombard, 72 F.3d at 186-87 (noting that authority to depart  downward
would not necessarily exist where case involved  only "sizable


As the government points out, however, neither Vizcaino  nor his lawyer
requested such a departure. Not only did his  lawyer fail to make any
argument at all, but the closest  Vizcaino came to raising the issue
was this: "I think that I 


should be sentenced for powder cocaine, which would change  the
category within the guidelines that were approved by the  Congress."
At most, this statement asked the district court  to exclude crack
cocaine from its sentencing consideration.  Because Vizcaino had
accepted responsibility for the crack  and had not disputed that it
was relevant conduct for pur- poses of the Guidelines, however, the
district court had no  choice but to include crack in its sentencing
calculations  unless the Guidelines provided some basis for not
considering  it. Vizcaino offered the district court no such basis. To
be  sure, Vizcaino was not required to state the issue as clearly as 
appellate counsel has, or, for that matter, even to cite to  section
5K2.0 in order to preserve the issue for appeal. But  absent any
statement that the district court could have rea- sonably interpreted
as arguing that crack so distorted the  sentence as to take it out of
the Guidelines' heartland, we  cannot conclude that Vizcaino preserved


Citing United States v. Beckham, 968 F.2d 47 (D.C. Cir.  1992),
Vizcaino contends that he need not precisely articulate  the basis for
his downward departure request in order to  preserve the issue for
appeal. In Beckham, we remanded for  resentencing on the basis of a
"refined" argument on appeal  even though in the district court the
defendant, like Vizcaino,  only "complained about the harshness of his
sentence in  general terms." Id. at 53. This case differs from Beckham
 in a critical respect. In Beckham, the government did not  argue that
the defendant had waived his departure argument  by failing to ask for
it in the district court. Id. at 54 n.5  ("Although [the defendant's]
refinement of the disproportion- ality argument was not raised below,
the government failed to  object to it, or even to comment upon it, in
its brief, thus  waiving any waiver argument it may have had."). Far
from  waiving the waiver issue in this case, the government has 
argued it strenuously.


Because Vizcaino failed to preserve the argument for ap- peal, we
review the district court's failure to depart sua  sponte at most for
plain error. See United States v. Albrit- ton, 75 F.3d 709, 712 (D.C.
Cir. 1996) ("assuming, without  deciding, that we conduct plain error
review" where defen-


dant waives downward departure argument). As Vizcaino's  counsel
conceded at oral argument, under a plain error  standard his downward
departure argument is "in trouble."  Even assuming the district court
erred, absent precedent  from either the Supreme Court or this court
holding that  relevant conduct's disproportional weight may form a
basis  for a section 5K2.0 departure, the asserted error--failure to 
recognize authority to depart on those grounds--falls far  short of
plain error. See United States v. Merlos, 8 F.3d 48,  51 (D.C. Cir.
1993) (absent an opinion by this circuit or the  Supreme Court on the
issue in dispute, there is no plain error  unless district court
failed to follow "absolutely clear" legal  norm such as clear
statutory provision or court rule); United  States v. Blackwell, 694
F.2d 1325, 1342 (D.C. Cir. 1982) ("the  lack of ... precedent in the
circuit and the novelty of the  issue presented militate against"


Vizcaino's sentence is affirmed.


So ordered.