United States v. Hidalgo-Marte ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2356
UNITED STATES,
Appellee,
v.
JOSE DELIO HIDALGO-MARTE,
a/k/a Jamie Luis Carlo,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Raymond J. Rigat and Gilbride & Rigat on brief for
appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Thomas F.
Klumper, Assistant United States Attorney, on brief for
appellee.
September 6, 2001
Per curiam. Appellant, who pled guilty to two counts
stemming from his unlawful reentry into the United States
following deportation, claims that the district court erred in
refusing to grant a downward departure in his sentence. We
conclude that we have no jurisdiction to review this claim and
therefore dismiss the appeal.
A district court's discretionary refusal to depart downward
is unreviewable unless the court mistakenly believed that it
lacked authority to do so. United States v. Patrick, 248 F.3d
11, 28 (lst Cir. 2001); United States v. Tucker, 892 F.2d 8, 10-
11 (lst Cir. 1989). At sentencing in this case, appellant's
counsel urged the court to depart from the guideline range of 46
to 57 months, and impose a sentence of 37 months, based on three
factors: (1) he returned to the United States because he wished
to reunite with his wife and child after the emotionally
difficult death of his mother, for whom he had been sole
caretaker; (2) he suffers from diabetes; and (3) his criminal
history category overstates the severity of his past criminal
conduct.
-2-
The record shows that the district court understood its
authority to depart, but declined to do so. It imposed a 46-
month term, stating:
The Court considers that the medical condition and
the other circumstances narrated by the defendant in
open court do not justify a downward departure in this
case, therefore, the verbal request is denied.
Indeed, appellant does not argue that the court misunderstood
its authority to depart. Rather, he asserts that we should
review for abuse of discretion the court's judgment that his
circumstances did not warrant a departure. We have no
jurisdiction to do so, however; the abuse-of-discretion standard
applies when a court has made a departure, see Koon v. United
States, 518 U.S. 81, 91, 100 (1996), not when it has made a
discretionary decision against one.
The appeal is therefore dismissed.
-3-