United States v. Malloy

69 F.3d 531

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
UNITED STATES, Appellee,
v.
Mary Gail MALLOY, Defendant, Appellant.

No. 95-1609.

United States Court of Appeals, First Circuit.

Oct. 31, 1995.

Tony F. Soltani on brief for appellant.

Paul M. Gagnon, United States Attorney, and Terry L. Ollila, Assistant United States Attorney, on Motion for Summary Disposition, for appellee.

Before TORRUELLA, Chief Judge, BOUDIN and STAHL, Circuit Judges.

PER CURIAM.

1

Defendant-appellant Mary Gail Malloy 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. Sec. 5H1.4. The government argues that we lack jurisdiction and urges us to dismiss the appeal. We agree with the government.

2

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 States v. Morrison, 46 F.3d 127, 130 (1st Cir.1995) (appeal will not lie from a district court's discretionary decision not to depart); United States v. Williams, 898 F.2d 1400, 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. 27.1.