Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.united States of America, Appellee, v. Luz Altagracia Sosa, Defendant, Appellant, 976 F.2d 724 (1st Cir. 1992)

Appellant pled guilty to possession with intent to distribute 561.1 grams net weight of cocaine. The district court then sentenced appellant to the statutory minimum sentence of sixty months in prison pursuant to 21 U.S.C. § 841(b) (1) (B) (ii). Because appellant's co-defendants possessed fewer than 500 grams of cocaine, they received sentences of only 33 months each. Neither the United States nor appellant dispute the 60 month sentence.

During the sentencing hearing, however, the United States offered evidence that appellant recruited her co-defendants to commit their crimes. The government contends that it obtained this evidence from a co-defendant's presentence report. The government never revealed this evidence to appellant prior to the sentencing hearing. As such, appellant requested a copy of the presentence report and a continuance in order to rebut the new allegation. The trial judge denied this request.

Because this court may only review the district court's decision in this case for clear error, United States v. Panet-Collazo, 960 F.2d 256, 262 (1st Cir. 1992), and we have found none, we affirm. The court properly assigned the minimum statutory sentence available to appellant.

Both the United States and appellant have informed us, however, that the new allegation in the sentencing hearing record allows the Federal Correction Authority to apply more restrictive incarceration measures to appellant pursuant to the government's classification procedure. Because appellant had no opportunity to rebut the new allegation, we urge the United States and appellant to address this matter together with the Bureau of Prisons to insure that appellant receives a proper classification.

Affirmed.