United States v. Rodriguez-Paulino ( 1994 )

USCA1 Opinion

          December 13, 1994     [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



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        No. 94-1652

                                    UNITED STATES,

                                      Appellee,

                                          v.

                               LUIS RODRIGUEZ-PAULINO,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO


                   [Hon. Gilberto Gierbolini, U.S. District Judge]
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                                        Before

                               Torruella, Chief Judge,
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                          Boudin and Stahl, Circuit Judges.
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            Benito I. Rodriguez Masso on brief for appellant.
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            Guillermo  Gil,  United  States  Attorney,  and  Warren   Vazquez,
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        Assistant  United  States  Attorney,  On  Motion  Requesting   Summary
        Disposition and Memorandum Of Law for appellee.

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                      Per  Curiam.   Appellant,  Luis  Rodriguez Paulino,
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            objects  to  his  sentence  on  the  ground  of  the  court's

            erroneous perception that, in sentencing appellant below  the

            guideline sentencing  range, it lacked authority  to impose a

            sentence   lower  than   the   sentences   imposed   on   his

            codefendants.1      Appellant has  only a "very  narrow right

            to appeal." United  States v. Soltero-Lopez,  11 F.3d 18,  19
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            (1st Cir. 1993).   This court has ruled on  several occasions

            that  "we  have no  jurisdiction to  review  the extent  of a
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            downward departure  merely because the  affected defendant is

            dissatisfied  with the quantification of the district court's

            generosity." United  States v. Pighetti,  898 F.2d 3,  4 (1st
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            Cir.  1990); United States v.  Pomerleau, 923 F.2d  5, 6 (1st
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            Cir. 1991).

                 "The ban  on review is not  absolute," however. Soltero-
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            Lopez,  11  F.2d  at  20.    This  court  has  indicated  its
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            willingness to  review cases  where a defendant  alleges that

            the court  mistakenly believed  it lacked legal  authority to

            depart,  United States v. Rivera, 994 F.2d 942, 953 (1st Cir.
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            1993),  or that  the court's  departure decision  exhibited a

            "fundamental misunderstanding" about how the guidelines work,






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            1.    Appellant also  contends that  the sentence  imposed is
            inconsistent   with  the   court's  findings   regarding  his
            diminished life  expectancy and  that home  confinement would
            have been a suitable alternative to imprisonment.  We have no
            jurisdiction to review those claims.















            see   Soltero-Lopez,  supra,   or  in   other  "extraordinary
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            circumstances." See Pomerleau, 923 F.2d at 6.
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                 Here, appellant  has arguably alleged  that the district

            court  believed  that,  in  determining  the  extent  of  its

            departure, it  lacked power  to impose  a sentence  below his

            codefendants'   sentences.      This  court   therefore   has

            jurisdiction to review  the sentence for  evidence of such  a

            misunderstanding  of  the guidelines.   The  record, however,

            does  not reveal that the district court suffered from such a

            misunderstanding.   The   district   court's  statements   at

            sentencing and  its Sentencing Findings do  not indicate that

            it  believed  it  lacked  the legal  authority  to  impose  a

            sentence  below the  codefendants'  sentences.   They  merely

            indicate that  the  district court  considered  codefendants'

            sentences to be  one relevant  factor in arriving  at a  fair

            sentence below the  guideline sentencing range.  This is well

            within the court's broad discretion.  See  Pighetti, 898 F.2d
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            at 4 (noting that  the extent of a departure  is "essentially

            discretionary").   As in Soltero-Lopez, supra,  the record in
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            this case  provides scant support for  appellant's allegation

            that the district court misunderstood the guidelines.

                 We  have  held  that   "a  perceived  need  to  equalize

            sentencing  outcomes  for  similarly  situated  codefendants,

            without more,  will not permit  a departure  from a  properly

            calculated  guideline sentencing  range."  United  States  v.
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            Wogan,  938 F.2d 1446 (1st Cir. 1991); see also United States
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            v.  Carr, 932  F.2d  67,  73 (1st  Cir.  1991).   That  rule,
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            however, does not extend to  prohibit a sentencing court from

            considering   codefendants'  sentences   as  one   factor  in

            determining the extent of a departure. 

                 The sentence  is summarily affirmed pursuant  to Loc. R.
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            27.1.







































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