DocketNumber： 95-1201
Filed Date： 10/24/1995
Status： Precedential
Modified Date： 3/3/2016
October 24, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1201
UNITED STATES,
Appellee,
v.
JOSE MIGUEL CRUZ, A/K/A JOSE CRUZ MORILLO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
____________________
Robert A. Levine on brief for appellant. ________________
Jay P. McCloskey, United States Attorney, Jonathan R. Chapman, _________________ ____________________
Assistant United States Attorney, and Margaret D. McGaughey, on brief _____________________
for appellee.
____________________
____________________
Per Curiam. Appellant Jose Miguel Cruz appeals the ___________
refusal by the district court to depart downward from the
applicable guideline when it sentenced Cruz to 70 months in
prison after he pled guilty to conspiracy to a drug charge.
Cruz raises two claims on appeal. After carefully reviewing
the record in this case, we affirm.
Cruz's first claim is that the district court erred in
holding that it was without authority to grant Cruz a
downward departure based on his substantial assistance to the
government. The government did not move for a departure in
this case. The district court properly held that, since the
government did not move for a departure for assistance,
pursuant to U.S.S.G. 5K1.1, the court was without authority
to depart on that basis. United States v. Romolo, 937 F.2d _____________ ______
20, 23 (1st Cir. 1991).
Cruz says that he sought his departure under the general
departure provisions of section 5K2.0. This court has said
in Romolo that it was "theoretically possible, albeit ______
unlikely" that a substantial assistance departure could be
based on the latter section and granted without government _______
consent. Id. at 25. But having reviewed the record in this __
case, we think that there is nothing even arguably so
extraordinary as to take this case out of the general rule
that a motion by the government is required for a substantial
assistance departure.
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Cruz's second claim is that the district court
erroneously believed that it was without authority to grant
him a downward departure based on the allegedly "unusual
circumstances" of his case, such as his rehabilitation in
prison, the collateral consequences of his probable
deportation, and his assistance in persuading a fellow inmate
to cooperate with the government. However, considering the
context of the sentencing hearing as a whole, see United ___ ______
States v. Morrison, 46 F.3d 127, 130-131 (1st Cir. 1995), we ______ ________
are convinced that the court understood that it possessed the
authority to depart on these grounds in an appropriate case
but found the facts peculiar to Cruz not so unusual as to
justify a downward departure. Such a judgment, supported by
the record in this case, is not reviewable on appeal. United ______
States v. Pierro, 32 F.2d 611, 619 (1st Cir. 1994); United ______ ______ ______
States v. LeBlanc, 24 F.3d 340, 349 (1st Cir.), cert. denied, ______ _______ ____ ______
115 S. Ct. 250 (1994).
Affirmed. See 1st Cir. R. 27.1. ________ ___
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