[NOT FOR PUBLICATION – NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 00-2400

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM MOTT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges, and Doumar, Senior District Judge.*

Edward C. Roy, for appellant. Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Gerard B. Sullivan, Assistant United States Attorney, were on brief, for appellee.

* Of the Eastern District of Virginia, sitting by designation. October 1, 2001

-2- PER CURIAM. William Mott pled guilty to conspiracy to

distribute cocaine base and aiding and abetting others to do

the same.

(a)(1) (1994);

(1994).

Mott appeals the decision of the District Court in its

application of the sentencing guidelines, arguing that the

Court erred when it: 1) established the amount of drugs

constituting relevant conduct; 2) increased Mott’s base

offense level for use of a minor; and 3) denied Mott’s motion

for a downward departure. For the reasons that follow, Mott’s

sentence is affirmed.

Mott allowed various drug dealers to use his apartment to sell

drugs while he was accepting drugs in payment. This was how

he obtained his drugs as he was an addict. One of these

dealers was a 17-year-old boy named Benjamin Wilson, who was

arrested inside Mott’s apartment; Mott claims that he did not

know Wilson was a minor. Upon arresting Mott and Wilson, the

police found 9.46 grams of cocaine base under a chair occupied

by Wilson. Mott claims that these drugs should not have been

utilized to determine his sentence for conspiracy to

distribute because they were intended for his own personal

use.

Mott’s presentence report calculated his sentence as follows:

Mott received a base offense level of 28 based on the amount

-3- of crack cocaine involved in both his offense conduct and his

relevant conduct. Mott’s offense level was then increased by

two because he allowed a juvenile to sell cocaine base from

his apartment. See U.S.S.G. § 2D1.1(c)(6). Mott then received

a three-level decrease for acceptance of responsibility,

see U.S.S.G. § 3E1.1(b), a two-level decrease for his minor

role in the offense, see U.S.S.G. § 3B1.2(b), and a two-level

safety valve reduction. See U.S.S.G. § 5C1.2. Thus, Mott’s

total adjusted offense level was 23, and, with a criminal

history category of I, Mott’s guideline range of imprisonment

was 46 to 57 months. The Court ultimately sentenced Mott to

46 months. Mott appeals his sentence.

On appeal, challenges to a district court’s factual findings

in connection with sentencing hearings are reviewed for clear

error. United States v. Santos-Batista,

(1st

Cir. 2001). A district court must include in its drug weight

calculations the drugs involved in any uncharged transaction

that was “part of the same course of conduct or common scheme

or plan” as the charged conduct. U.S.S.G. § 1B1.3(a)(2).

Moreover, in the case of “jointly undertaken criminal

activity,” such as in the instant case, the defendant is

responsible at sentencing for “all reasonably foreseeable acts

and omissions of others in furtherance of the jointly

-4- undertaken criminal activity . . . that occurred during the

commission of the offense of conviction.” Id. § 1B1.3(1)(B).

The district court employs the “preponderance of the evidence”

standard in making its drug quantity and relevant conduct

findings. Santos-Batista,

.

The undisputed facts establish that, as part of the conspiracy

to sell cocaine base from Mott’s apartment, Mott allowed

Wilson and other dealers to use his apartment in return for

free cocaine base. The parties also agree that, shortly before

the search, Wilson made a sale of cocaine base from Mott’s

apartment, as charged in Count 7 of the indictment, to which

Mott pled guilty. The district judge rejected, as a factual

matter, the argument that the cocaine under Wilson’s chair was

not for sale, but was for Mott’s personal use. Thus, the

cocaine seized from beneath Wilson’s chair in Mott’s apartment

was properly attributable to Mott, for purposes of sentencing,

as part of the underlying distribution conspiracy, and the

district court did not commit clear error in making this

factual determination.

Mott next argues that the district court erred in imposing a

two-level enhancement under U.S.S.G. § 3B1.4 upon making a

factual determination that Mott involved a minor in the

commission of his offense. Mott first contends that he was

-5- unaware of Wilson’s age; second, he says that he did not “use

or attempt to use a minor.” Again, the district court’s

decision in that regard is reviewed for clear error. Santos-

Batista,

.

The provision at issue states: “If the defendant used or

attempted to use a person less than eighteen years of age to

commit the offense or assist in avoiding detection of, or

apprehension for, the offense, increase [the base offense

level] by 2 levels.” U.S.S.G. § 3B1.4. As to the first point,

Mott’s contention that he did not know Wilson was a minor is

irrelevant. There is no scienter element in this guideline,

and no Court has seen fit to read one in. See United States

v. Gonzalez,

, *2 (9th Cir. 2001); United States

v. McClain,

, 1285 (11th Cir. 2001). As to the

second point, the First Circuit has held that an enhancement

under § 3B1.4 may be based on the relevant conduct principle

that defendants are responsible for the foreseeable acts of

their co-conspirators. United States v. Patrick,

(1st Cir. 2001) (holding that a defendant head of a drug

conspiracy who did not personally employ minors in the

conspiracy was nonetheless responsible for the reasonably

foreseeable employment of minors by his co-conspirators). It

follows that under §1B1.3 of the sentencing guidelines, Mott

-6- is liable for his unindicted co-conspirators’ foreseeable

actions to use the minor Wilson for the drug sales which form

the basis of the conspiracy. There was an adequate

evidentiary basis for the trial judge to conclude that the use

of Wilson was foreseeable to Mott. Mott was aware that Wilson

was selling drugs from the apartment and agreed to it.

Finally, Mott claims that the district court should have

granted his motion for a downward departure on the basis that

1) he was addicted to cocaine base at the time of the

offenses; 2) he was victimized by higher-level drug dealers;

3) his offense conduct constituted “aberrant behavior” because

he had previously been law-abiding; and 4) he suffered from

extraordinary physical, mental, and emotional conditions due

to his cocaine addiction. Mott contends that the district

court therefore abused its discretion by denying his motion,

and that the district court improperly believed that it lacked

the authority to grant the downward departure motion.

It is well settled that “[a] district court’s discretionary

refusal to depart downward is unreviewable unless the court

believed it lacked the authority to do so.” Patrick,

. A defendant must show more than an arguable ambiguity

in a district court’s ruling denying a downward departure

motion to establish that the court acted in the belief that it

-7- lacked authority to depart. United States v. Deleon,

(1st Cir. 1999).

In the present case, Mott does not even point to any ambiguity

in the district court’s ruling. Nor could he. In the words of

the district court at sentencing:

I don’t believe you qualify for a downward departure. You certainly have accepted responsibility, I have no way of knowing how sincere or genuine your acceptance is, but I take you at your word. You’ve accepted responsibility, and you got credit for that. You had a relatively minor role in these offense [sic], and you got credit for that, too. You have had a good record up until now, but that doesn’t entitle you to a downward departure. I don’t think your case is sufficiently outside the heartland. It’s not sufficiently different from other cases like that that would warrant a downward departure.

Sentencing Tran. 31-32.

The instant case is indistinguishable from Patrick, where the

First Circuit affirmed a district court’s denial of a downward

departure motion where “the district court, exercising its

discretion, found it inappropriate to depart because Patrick

had not identified any factors that took his case outside the

‘heartland.’ ” Patrick,

.

In sum, there is nothing in the district court’s explanation

for its denial of Mott’s downward departure motion that

suggests the district court thought or believed it lacked the

authority to depart. Consequently, this Court is without

authority to review the district court’s denial of the

-8- downward departure motion, and Mott’s appeal may not be

sustained on this basis.

Affirmed.

-9-