United States v. Gallego ( 1992 )

USCA1 Opinion

          December 14, 1992     [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


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          No. 92-1626

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   VICTOR GALLEGO,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
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                                        Before

                                Selya, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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               Jonathan F. Oster and Oster & Groff on brief for appellant.
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               Lincoln  C. Almond,  United States  Attorney, and  Zechariah
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          Chafee, Assistant United States Attorney, on brief for the United
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          States.

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                    Per  Curiam.     This  criminal  appeal   involves  two
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          assignments  of  error  derived   from  the  same  circumstances.

          Defendant-appellant Victor  Gallego appeals the  district court's

          failure to  depart downward  from the guideline  sentencing range

          either because of the defendant's epilepsy or  because his motive

          for  the  crime was  allegedly to  accumulate  the money  that he

          needed to pay for epilepsy medication.  We dismiss the appeal for

          want of appellate jurisdiction.

                    We have said, time and  again, that "a district court's

          refusal to depart, regardless of the suggested direction, is  not

          appealable."  United States v. Romolo, 937  F.2d 20, 22 (1st Cir.
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          1991); accord, e.g., United  States v. Amparo, 961 F.2d  288, 292
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          (1st  Cir.), cert. denied, 121  L.Ed.2d 161 (1992); United States
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          v.  Hilton, 946 F.2d  955, 957 (1st Cir.  1991); United States v.
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          Harotunian, 920 F.2d 1040, 1044 (1st Cir. 1990); United States v.
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          Ruiz,  905 F.2d  499, 508-09  (1st Cir.  1990); United  States v.
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          Pighetti,  898  F.2d 3,  4-5 (1st  Cir.  1990): United  States v.
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          Tucker, 892 F.2d 8, 10-11 (1st Cir. 1989).  A narrow exception to
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          this  rule exists "if the  record supports an  inference that the

          sentencing  court's  failure  to  depart  did  not  represent  an

          exercise  of  fact-finding or  discretion,  but  was instead  the

          product of the court's  miscalculation about whether it possessed

          the  authority   to  depart."   Amparo, 961  F.2d  at 292.   That
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          exception has no relevance here.

                    The colloquy  at  sentencing makes  it perfectly  plain

          that  the district judge knew he possessed the legal authority to


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          depart downward if the  defendant suffered from an "extraordinary

          physical impairment,"  U.S.S.G.    5H1.4, but  declined to  do so

          because he believed defendant's epilepsy to be  "a sickness which

          can very definitely be  controlled through the proper   taking of

          medication" and, therefore, not "within the degree  of severity .

          . . which would warrant departure."  Sentencing Transcript at 12-

          13.  This was a judgment call, pure and simple, fully supportable

          on the record and unreviewable on appeal.  See, e.g., Amparo, 961
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          F.2d at 292; Hilton, 946 F.2d at 959-60.  
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                    We do not think it advances appellant's cause that  his

          asserted  motive  for drug  trafficking  was  to obtain  cash  to

          purchase  medication helpful  in controlling  his epilepsy.   The

          sentencing  guidelines  do not  provide  for downward  departures

          based on economic hardship.   U.S.S.G.   5K2.12 ("The  Commission

          considered the relevance of economic hardship and determined that

          personal financial difficulties .  . . do not warrant  a decrease

          in sentence.").   Because the Sentencing Commission was  aware of

          economic hardship as a possible  motivation for crime, a downward

          departure under U.S.S.G.    5K2.0 cannot rest on it.   See, e.g.,
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          United  States  v. Pozzy,  902 F.2d  133,  139 (1st  Cir.), cert.
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          denied, 111 S.Ct. 353 (1990).1
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               1At  any  rate,  we  seriously  question  whether  a  lesser
          sentence  could be imposed in this case given the mandatory terms
          of  the  statute of  conviction.   See  21 U.S.C.    841(b)(1)(B)
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          (1991); United States v.  Rodriguez, 938 F2d 319 (1st  Cir. 1991)
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          (district  court impermissibly contravened  statute in sentencing
          below mandatory minimum).   We  are, of course,  bound to  follow
          Rodriguez, notwithstanding appellant's  veiled suggestion that we
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          overrule it.  See,  e.g., United States v. Wogan,  938 F.2d 1446,
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          1449  (1st Cir.)  (reiterating  that, in  a multi-panel  circuit,

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                    We  need go no further.  There  is no sign in this case

          "that the sentencing judge  was unaware of his power to depart or

          misperceived the legal standard."   Amparo, 961 F.2d at 292.   To
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          the  contrary, the judge found  the pertinent facts, employed the

          proper standard, and refused  to reduce the sentence.   "When, as

          here, a  judge declines  to depart  after he or  she has  made an

          application of settled law  to idiosyncratic facts, the  court of

          appeals lacks jurisdiction to second-guess the decision."  United
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          States v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992).
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                    Appeal dismissed.  See 1st Cir. Loc. R. 27.1.   
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          newly  constituted  panels are  bound  by  prior panel  decisions
          closely in point), cert. denied, 112 S.Ct. 441 (1991).
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