DocketNumber： 92-1626
Filed Date： 12/14/1992
Status： Precedential
Modified Date： 3/3/2016
December 14, 1992 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1626
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR GALLEGO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Jonathan F. Oster and Oster & Groff on brief for appellant.
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Lincoln C. Almond, United States Attorney, and Zechariah
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Chafee, Assistant United States Attorney, on brief for the United
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States.
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Per Curiam. This criminal appeal involves two
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assignments of error derived from the same circumstances.
Defendant-appellant Victor Gallego appeals the district court's
failure to depart downward from the guideline sentencing range
either because of the defendant's epilepsy or because his motive
for the crime was allegedly to accumulate the money that he
needed to pay for epilepsy medication. We dismiss the appeal for
want of appellate jurisdiction.
We have said, time and again, that "a district court's
refusal to depart, regardless of the suggested direction, is not
appealable." United States v. Romolo, 937 F.2d 20, 22 (1st Cir.
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1991); accord, e.g., United States v. Amparo, 961 F.2d 288, 292
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(1st Cir.), cert. denied, 121 L.Ed.2d 161 (1992); United States
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v. Hilton, 946 F.2d 955, 957 (1st Cir. 1991); United States v.
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Harotunian, 920 F.2d 1040, 1044 (1st Cir. 1990); United States v.
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Ruiz, 905 F.2d 499, 508-09 (1st Cir. 1990); United States v.
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Pighetti, 898 F.2d 3, 4-5 (1st Cir. 1990): United States v.
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Tucker, 892 F.2d 8, 10-11 (1st Cir. 1989). A narrow exception to
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this rule exists "if the record supports an inference that the
sentencing court's failure to depart did not represent an
exercise of fact-finding or discretion, but was instead the
product of the court's miscalculation about whether it possessed
the authority to depart." Amparo, 961 F.2d at 292. That
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exception has no relevance here.
The colloquy at sentencing makes it perfectly plain
that the district judge knew he possessed the legal authority to
2
depart downward if the defendant suffered from an "extraordinary
physical impairment," U.S.S.G. 5H1.4, but declined to do so
because he believed defendant's epilepsy to be "a sickness which
can very definitely be controlled through the proper taking of
medication" and, therefore, not "within the degree of severity .
. . which would warrant departure." Sentencing Transcript at 12-
13. This was a judgment call, pure and simple, fully supportable
on the record and unreviewable on appeal. See, e.g., Amparo, 961
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F.2d at 292; Hilton, 946 F.2d at 959-60.
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We do not think it advances appellant's cause that his
asserted motive for drug trafficking was to obtain cash to
purchase medication helpful in controlling his epilepsy. The
sentencing guidelines do not provide for downward departures
based on economic hardship. U.S.S.G. 5K2.12 ("The Commission
considered the relevance of economic hardship and determined that
personal financial difficulties . . . do not warrant a decrease
in sentence."). Because the Sentencing Commission was aware of
economic hardship as a possible motivation for crime, a downward
departure under U.S.S.G. 5K2.0 cannot rest on it. See, e.g.,
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United States v. Pozzy, 902 F.2d 133, 139 (1st Cir.), cert.
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denied, 111 S.Ct. 353 (1990).1
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1At any rate, we seriously question whether a lesser
sentence could be imposed in this case given the mandatory terms
of the statute of conviction. See 21 U.S.C. 841(b)(1)(B)
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(1991); United States v. Rodriguez, 938 F2d 319 (1st Cir. 1991)
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(district court impermissibly contravened statute in sentencing
below mandatory minimum). We are, of course, bound to follow
Rodriguez, notwithstanding appellant's veiled suggestion that we
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overrule it. See, e.g., United States v. Wogan, 938 F.2d 1446,
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1449 (1st Cir.) (reiterating that, in a multi-panel circuit,
3
We need go no further. There is no sign in this case
"that the sentencing judge was unaware of his power to depart or
misperceived the legal standard." Amparo, 961 F.2d at 292. To
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the contrary, the judge found the pertinent facts, employed the
proper standard, and refused to reduce the sentence. "When, as
here, a judge declines to depart after he or she has made an
application of settled law to idiosyncratic facts, the court of
appeals lacks jurisdiction to second-guess the decision." United
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States v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992).
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Appeal dismissed. See 1st Cir. Loc. R. 27.1.
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newly constituted panels are bound by prior panel decisions
closely in point), cert. denied, 112 S.Ct. 441 (1991).
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4
United States v. Barbara Hilton , 946 F.2d 955 ( 1991 )
United States v. Claude Paul Tardiff , 969 F.2d 1283 ( 1992 )
United States v. Dana Pighetti , 898 F.2d 3 ( 1990 )
United States v. Christopher J. Romolo , 937 F.2d 20 ( 1991 )
United States v. Forrest S. Tucker , 892 F.2d 8 ( 1989 )
United States v. Fausto D. Ruiz , 905 F.2d 499 ( 1990 )