United States v. Rijos ( 1994 )

USCA1 Opinion

          September 28, 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


                                 ____________________


        No. 93-1647

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                    SANTOS RIJOS,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO


                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

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

                                 ____________________

            Benicio Sanchez Rivera,  Federal Public Defender, and Miguel  A.A.
            ______________________                                ____________
        Nogueras-Castro,  Assistant  Federal  Public Defender,  on  brief  for
        _______________
        appellant.
            Guillermo Gil,  United States Attorney,  Jose A.  Quiles-Espinosa,
            _____________                            ________________________
        Senior  Litigation Counsel,  and Miguel  A. Pereira,  Assistant United
                                         __________________
        States Attorney, on brief for appellee.


                                 ____________________

                                 ____________________

















                      Per Curiam.   Santos Rijos  appeals his sentence on
                      __________

            the ground  that the district court  mistakenly believed that

            it lacked  authority to  depart downward from  the Sentencing

            Guidelines.  We dismiss for lack of appellate jurisdiction.

                    Rijos  pleaded  guilty  to  a   one-count  indictment

            charging  him with  unlawfully reentering  the United  States

            after deportation following a felony conviction, in violation

            of 8  U.S.C.    1326(b)(1).   The  pre-sentence report  (PSR)

            calculated  a total offense level of 21, as follows: the base

            offense level of  8 was  increased by 16  levels because  the

            felony  that  led to  Rijos'  deportation  was an  aggravated

            felony; three levels were subtracted for Rijos' acceptance of

            responsibility  for  his  actions and  for  timely  notifying

            authorities  of  his intention  to  plead  guilty.   The  PSR

            computed  a criminal history category of  III, resulting in a

            guideline  imprisonment  range of  46  to  57  months.    The

            district court sentenced Rijos to 46 months in prison.

                 At the  sentencing hearing,  Rijos'  attorney asked  the

            district  court  to  make   a  downward  departure  from  the

            Guidelines  sentence pursuant to  U.S.S.G.   5K2.0.   The two

            grounds  for  the  requested   departure  were:  1)  economic

            hardship  in the  Dominican  Republic, the  country to  which

            Rijos had been  deported, and 2) Rijos'  cooperation with the

            government.   The district court  denied the  request.   With





















            respect  to  the first  ground, the  district court  found as

            follows:

                 [Rijos] was  deported September, 1992,  he was back
                 here in November of  1992 by plane not by  boat, so
                 apparently his hardship  isn't that bad  because he
                 came  by plane, and of  course if he  has family in
                 New  York  I am  sure  that  that was  his  primary
                 concern, to come and see his family.  Of course, he
                 could have waited until  his supervised release was
                 over and then requested permission in writing.

            With  respect  to the  second  ground  (cooperation with  the

            government), the court responded  "that's why I gave him  a 3

            level reduction."

                 On appeal, Rijos argues that the court erred in refusing

            to  consider  appellant's  extent  of  cooperation  with  the

            government and his "family ties and responsibilities,"  since

            neither feature  is a forbidden  basis for departure.   Rijos

            states  in  his  brief that  "the  district  court failed  to

            consider  the relevant  facts and  to what  extent if  any he

            could  exercise his  discretion."   Therefore, Rijos  seeks a

            remand to the district court for re-sentencing.

                 In deciding whether we have jurisdiction  to review this

            sentencing we apply the following rule:

                 Ordinarily a district  court's refusal to  exercise
                 its   discretion  to   depart  downward   from  the
                 sentencing guidelines is not reviewable  on appeal.
                 Appellate jurisdiction does attach,  however, where
                 the sentencing  court's decision  not to depart  is
                 based on  the court's  mistaken view that  it lacks
                 the legal  authority to  consider a departure.   In
                 other words,  where the court  errs in  determining
                 whether the allegedly special circumstances  are of
                 the  "kind"  that  the  Guidelines,  in  principle,
                 permit  the  sentencing court  to consider,  we may


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                 proceed to review  the court's sentencing  decision
                 not to depart.  On the other hand, if "we find that
                 the court properly understood its power  to depart,
                 but  refused  to  exercise   that  power,  we  lack
                 jurisdiction to consider the appeal."

            United  States v. Romero, No. 93-2187, slip op. at 28-29 (1st
            ______________    ______

            Cir. Aug. 29, 1994) (citations omitted).

                 Here,  the district  court  did not  possess a  mistaken

            belief that  it  lacked  the authority  to  depart  from  the

            guidelines.   Therefore, we  lack jurisdiction to  review its

            departure decision.  If  the district court erred, it  was in

            believing that it  had discretion to  depart where there  was

            none, not the reverse.  The "special circumstances" for which

            Rijos requested  a downward departure were financial hardship

            and cooperation  with the  government.  Economic  hardship is

            one  of the  few "forbidden"  features which  may not  be the

            basis  for a decision to depart  from the guideline sentence.

            See  United States  v. Rivera,  994 F.2d  942, 949  (1st Cir.
            ___  _____________     ______

            1993);  U.S.S.G.    5K2.12, p.s.   Nonetheless,  the district

            court considered Rijos'  alleged hardship and  concluded that

            "his hardship isn't that bad."

                 Rijos  also   sought  a   downward  departure   for  his

            cooperation  with the  government by  pleading guilty  to the

            offense.   Assistance to the government  in the investigation

            or prosecution of another person who has committed an offense

            is "encouraged"  as a ground  for departure.  See U.S.S.G.   
                                                          ___

            5K1.1.  The voluntary  disclosure of an offense prior  to its



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            discovery  is also  an "encouraged"  feature. See  U.S.S.G.  
                                                          ___

            5K2.16,  p.s.  Here,  however,  Rijos  requested  a  downward

            departure  solely   on  the   basis  of  his   acceptance  of

            responsibility at the time of his guilty plea.  

                 The  Guidelines specifically  provide for  a three-level

            reduction  in the offense level for  such circumstances.  See
                                                                      ___

            U.S.S.G.   3E1.1.  That provision does not preclude the court

            from departing  from the  Guidelines, however, "if  the court

            determines  that,  in  light  of  unusual circumstances,  the

            guideline  level  attached  to  that  factor  is inadequate."

            U.S.S.G.    5K2.0, p.s.   There is  nothing in the  record to

            support   Rijos'   contention   that   the   district   court

            misunderstood  that it  could  depart downward  based upon  a

            defendant's  cooperation  with  the  government  in  "unusual

            circumstances,"  notwithstanding    3E1.1.  Rather, we  think

            that the district court concluded that there were no "unusual

            circumstances" present to render the three-level reduction in

            the offense level under   3E1.1 inadequate.

                 In his appellate brief,  Rijos seems to allege  that the

            district  court erred  in not  considering his  "family ties"

            before denying  his departure request.   The record  does not

            indicate, however, that  family ties was  one of the  grounds

            upon  which  Rijos requested  a  departure.   Therefore,  the

            district  court cannot  be  faulted for  failing to  consider

            whether family ties,  although a "discouraged"  feature, were



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            "present in a manner  that is unusual or special  rather than

            'ordinary.'" Rivera, 994  F.2d at 948.
                         ______

                 We conclude  that the district court  did not mistakenly

            believe  that  it lacked  the  authority to  depart  from the

            Sentencing Guidelines.   Therefore, its departure decision is

            not  reviewable by  this court.     This appeal  is summarily

            dismissed pursuant to Loc. R. 27.1.   







































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