United States v. McKinney ( 1994 )

USCA1 Opinion

          October 14, 1994      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


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        No. 94-1376 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  ANTHONY MCKINNEY,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND


                    [Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                  Cyr, Circuit Judge,
                                       _____________
                          Bownes, Senior Circuit Judge, and
                                  ____________________
                                Stahl, Circuit Judge.
                                       _____________

                                 ____________________

            Edward J. Romano on brief for appellant.
            ________________
            Sheldon  Whitehouse, United  States Attorney,  Margaret E.  Curran
            ___________________                            ___________________
        and Lawrence  D. Gaynor, Assistant  United States Attorneys,  on brief
            ___________________
        for appellee.


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                      Per  Curiam.   Appellant pleaded  guilty to  a two-
                      ___________

            count indictment charging him with violations of 18 U.S.C.   

            846  and  841(a)(1) &  (b)(1)(B)  concerning  a cocaine  base

            conspiracy.    Because  appellant  had a  prior  drug  felony

            conviction, he was subject to a mandatory minimum sentence of

            ten years.  See   841(b)(1)(B).  The district court therefore
                        ___

            imposed  a  ten-year sentence.    Appellant's  only issue  on

            appeal is whether the district court had the authority to sua

            sponte  depart  downward  from  this  statutorily  prescribed

            minimum  term  of  imprisonment  based  on  the  "substantial

            assistance" he allegedly provided to the government.

                      It is well settled that  a refusal by the  district

            court to depart downward is not appealable.  United States v.
                                                         _____________

            Romolo, 937 F.2d  20, 22 (1st Cir. 1991).   See United States
            ______                                      ___ _____________

            v.  McAndrews, 12 F.3d 273, 276 (1st Cir. 1993) (general rule
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            that  departure  decisions   are  non-appealable  applies  to

            situation of  departures for substantial  assistance).   This

            jurisdiction rule, in  turn, is subject to  the "equally well

            recognized" principle that "appellate jurisdiction may attach

            in those few  situations where the lower court's decision not

            to depart is based on the court's mistaken view that it lacks

            the legal  authority to consider  a departure."   Romolo, 937
                                                              ______

            F.2d at 22.




















                      Both  U.S.S.G.    5K1.1  and  18  U.S.C.    3553(e)

            govern downward departures based on a defendant's substantial

            assistance to the government.   However, these provisions are

            activated only upon a motion by the government.  See  Wade v.
                                                             ___  ____

            United States, 112 S. Ct. 1840, 1843 (1992) (district court's
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            authority to depart downward  based on substantial assistance

            is conditioned on  a motion by the government); United States
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            v.  Mariano,  983  F.2d  1150,  1155  (1st   Cir.  1993)  ("a
                _______

            government  motion is a  sine qua  non to  a departure  for a
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            defendant's substantial assistance"); Romolo, 937 F.2d at  23
                                                  ______

            (same).

                      Because the government did  not file such a motion,

            the  district court  was correct  in stating  that it  had no

            discretion  in the  matter.   As such,  we note  our lack  of

            jurisdiction  and  summarily dismiss  the appeal  under Local
                                         _______

            Rule 27.1.





















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