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       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]
                 United States Court of Appeals
                     For the First Circuit





No. 98-1521

                          UNITED STATES,

                            Appellee,

                                v.

                         JESUS MARTINEZ,

                      Defendant, Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

             [Hon. Mary M. Lisi, U.S. District Judge]



                              Before

                    Boudin, Stahl and Lynch,
                        Circuit Judges.
                                
                                
                                
                                
     
     Michael J. Lepizzera, Jr. on brief for appellant.
     Margaret E. Curran, United States Attorney, Donald C. Lockhart 
and Zechariah Chafee, Assistant United States Attorneys, on brief
for appellee.





February 25, 2000



                                
  
  
            Per Curiam. Jesus Martinez appeals from his sentence
  on two grounds: 1) that the district court erred in finding, on
  the basis of the government's evidence, that the substance
  involved in his offense was "crack," as that term is defined by
  the sentencing guidelines, and 2) that the district court erred
  in denying defendant's request for a downward departure,
  pursuant to U.S.S.G. � 4A1.3, from the career-offender
  guideline sentencing range.
            I. Proof that Contraband was "Crack"
            To meet its burden of proving that the substance
  involved in Martinez' offense was "crack," as that term is
  defined by the sentencing guidelines, the government introduced
  a toxicology report identifying the substance as cocaine base
  and testimony by a narcotics investigator with the Providence
  Police Department's Special Investigations Bureau, identifying
  it as crack.  Martinez' argument on appeal that the
  government's evidence was insufficient is foreclosed by this
  court's recent decisions rejecting similar challenges. See
  United States v.  Ferreras, 192 F.3d 5, 189 (1st Cir. 1999),
  cert. denied, __ U.S. __, 120 S. Ct. 969 (2000); United States
  v. Martinez, 144 F.3d 189,190 (1st Cir. 1998); United States v.
  Robinson, 144 F.3d 104, 109 (1st Cir. 1998).
            II. Denial of Downward Departure
            The government argues that the district court's
  decision not to depart from the career-offender guideline
  sentencing range was a discretionary decision and, as such, is
  not reviewable.  We agree.  See United States v. Rizzo, 121
  F.3d 794, 798 (1st Cir. 1997).  The district court expressly
  acknowledged its authority to "invoke � 4A1.3 to depart
  downward from the career-offender category if it concludes that
  the category inaccurately reflects the defendant's actual
  criminal history within the meaning of � 3553(b)." United
  States v. Lindia, 82 F.3d 1154, 1165 (1st Cir. 1996).  Based
  upon a thorough review of the entire record, we conclude that
  the denial of Martinez' departure request represented the
  district court's discretionary decision that the career-
  offender category did not over-represent the seriousness of
  Martinez' criminal history.
            Martinez' sentence is affirmed. See Loc. R. 27(c).
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