United States v. Malloy ( 1995 )

USCA1 Opinion

          October 31, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-1609



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  MARY GAIL MALLOY,



                                Defendant, Appellant.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE





                    [Hon. Paul J. Barbadoro, 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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            Tony F. Soltani on brief for appellant.
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            Paul  M. Gagnon,  United States  Attorney,  and Terry  L.  Ollila,
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        Assistant United  States Attorney, on Motion  for Summary Disposition,

        for appellee.





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                 Per  Curiam.    Defendant-appellant  Mary   Gail  Malloy
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            appeals on the sole  ground that the district court  erred in



            denying  her  motion  for  a  downward  departure  from   the



            guidelines  sentencing range  pursuant to  U.S.S.G.    5H1.4.



            The government  argues that we lack jurisdiction and urges us



            to dismiss the appeal.  We agree with the government.



                 The sentencing  transcript  suggests that  the  district



            court  may have made no final determination whether or not it



            had the authority to  depart to a reduced prison  sentence as



            requested by Malloy.   However, the  court clearly  concluded



            that whether or not it  had such authority, the facts  in the



            instant  case  do not  warrant  a downward  departure.   This



            latter finding constitutes a discretionary refusal to depart.



            Since it  is sufficient to support the sentence, the district



            court's decision not to  depart is unreviewable.   See United
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            States  v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995) (appeal
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            will not  lie from a district  court's discretionary decision



            not  to depart);  United States v.  Williams, 898  F.2d 1400,
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            1403 (9th Cir.  1990) (declining to  review district  court's



            determination  that it had no authority  to depart when court



            indicated it would not depart even if it had  authority to do



            so).   Accordingly,  the appeal  is dismissed.   See  Loc. R.
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            27.1.