
USCA1 Opinion

	




          September 28, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1647                                    UNITED STATES,                                      Appellee,                                          v.                                    SANTOS RIJOS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                          Bownes, Senior Circuit Judge, and                                  ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Benicio Sanchez Rivera,  Federal Public Defender, and Miguel  A.A.            ______________________                                ____________        Nogueras-Castro,  Assistant  Federal  Public Defender,  on  brief  for        _______________        appellant.            Guillermo Gil,  United States Attorney,  Jose A.  Quiles-Espinosa,            _____________                            ________________________        Senior  Litigation Counsel,  and Miguel  A. Pereira,  Assistant United                                         __________________        States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Santos Rijos  appeals his sentence on                      __________            the ground  that the district court  mistakenly believed that            it lacked  authority to  depart downward from  the Sentencing            Guidelines.  We dismiss for lack of appellate jurisdiction.                    Rijos  pleaded  guilty  to  a   one-count  indictment            charging  him with  unlawfully reentering  the United  States            after deportation following a felony conviction, in violation            of 8  U.S.C.    1326(b)(1).   The  pre-sentence report  (PSR)            calculated  a total offense level of 21, as follows: the base            offense level of  8 was  increased by 16  levels because  the            felony  that  led to  Rijos'  deportation  was an  aggravated            felony; three levels were subtracted for Rijos' acceptance of            responsibility  for  his  actions and  for  timely  notifying            authorities  of  his intention  to  plead  guilty.   The  PSR            computed  a criminal history category of  III, resulting in a            guideline  imprisonment  range of  46  to  57  months.    The            district court sentenced Rijos to 46 months in prison.                 At the  sentencing hearing,  Rijos'  attorney asked  the            district  court  to  make   a  downward  departure  from  the            Guidelines  sentence pursuant to  U.S.S.G.   5K2.0.   The two            grounds  for  the  requested   departure  were:  1)  economic            hardship  in the  Dominican  Republic, the  country to  which            Rijos had been  deported, and 2) Rijos'  cooperation with the            government.   The district court  denied the  request.   With            respect  to  the first  ground, the  district court  found as            follows:                 [Rijos] was  deported September, 1992,  he was back                 here in November of  1992 by plane not by  boat, so                 apparently his hardship  isn't that bad  because he                 came  by plane, and of  course if he  has family in                 New  York  I am  sure  that  that was  his  primary                 concern, to come and see his family.  Of course, he                 could have waited until  his supervised release was                 over and then requested permission in writing.            With  respect  to the  second  ground  (cooperation with  the            government), the court responded  "that's why I gave him  a 3            level reduction."                 On appeal, Rijos argues that the court erred in refusing            to  consider  appellant's  extent  of  cooperation  with  the            government and his "family ties and responsibilities,"  since            neither feature  is a forbidden  basis for departure.   Rijos            states  in  his  brief that  "the  district  court failed  to            consider  the relevant  facts and  to what  extent if  any he            could  exercise his  discretion."   Therefore, Rijos  seeks a            remand to the district court for re-sentencing.                 In deciding whether we have jurisdiction  to review this            sentencing we apply the following rule:                 Ordinarily a district  court's refusal to  exercise                 its   discretion  to   depart  downward   from  the                 sentencing guidelines is not reviewable  on appeal.                 Appellate jurisdiction does attach,  however, where                 the sentencing  court's decision  not to depart  is                 based on  the court's  mistaken view that  it lacks                 the legal  authority to  consider a departure.   In                 other words,  where the court  errs in  determining                 whether the allegedly special circumstances  are of                 the  "kind"  that  the  Guidelines,  in  principle,                 permit  the  sentencing court  to consider,  we may                                         -3-                 proceed to review  the court's sentencing  decision                 not to depart.  On the other hand, if "we find that                 the court properly understood its power  to depart,                 but  refused  to  exercise   that  power,  we  lack                 jurisdiction to consider the appeal."            United  States v. Romero, No. 93-2187, slip op. at 28-29 (1st            ______________    ______            Cir. Aug. 29, 1994) (citations omitted).                 Here,  the district  court  did not  possess a  mistaken            belief that  it  lacked  the authority  to  depart  from  the            guidelines.   Therefore, we  lack jurisdiction to  review its            departure decision.  If  the district court erred, it  was in            believing that it  had discretion to  depart where there  was            none, not the reverse.  The "special circumstances" for which            Rijos requested  a downward departure were financial hardship            and cooperation  with the  government.  Economic  hardship is            one  of the  few "forbidden"  features which  may not  be the            basis  for a decision to depart  from the guideline sentence.            See  United States  v. Rivera,  994 F.2d  942, 949  (1st Cir.            ___  _____________     ______            1993);  U.S.S.G.    5K2.12, p.s.   Nonetheless,  the district            court considered Rijos'  alleged hardship and  concluded that            "his hardship isn't that bad."                 Rijos  also   sought  a   downward  departure   for  his            cooperation  with the  government by  pleading guilty  to the            offense.   Assistance to the government  in the investigation            or prosecution of another person who has committed an offense            is "encouraged"  as a ground  for departure.  See U.S.S.G.                                                             ___            5K1.1.  The voluntary  disclosure of an offense prior  to its                                         -4-            discovery  is also  an "encouraged"  feature. See  U.S.S.G.                                                            ___            5K2.16,  p.s.  Here,  however,  Rijos  requested  a  downward            departure  solely   on  the   basis  of  his   acceptance  of            responsibility at the time of his guilty plea.                   The  Guidelines specifically  provide for  a three-level            reduction  in the offense level for  such circumstances.  See                                                                      ___            U.S.S.G.   3E1.1.  That provision does not preclude the court            from departing  from the  Guidelines, however, "if  the court            determines  that,  in  light  of  unusual circumstances,  the            guideline  level  attached  to  that  factor  is inadequate."            U.S.S.G.    5K2.0, p.s.   There is  nothing in the  record to            support   Rijos'   contention   that   the   district   court            misunderstood  that it  could  depart downward  based upon  a            defendant's  cooperation  with  the  government  in  "unusual            circumstances,"  notwithstanding    3E1.1.  Rather, we  think            that the district court concluded that there were no "unusual            circumstances" present to render the three-level reduction in            the offense level under   3E1.1 inadequate.                 In his appellate brief,  Rijos seems to allege  that the            district  court erred  in not  considering his  "family ties"            before denying  his departure request.   The record  does not            indicate, however, that  family ties was  one of the  grounds            upon  which  Rijos requested  a  departure.   Therefore,  the            district  court cannot  be  faulted for  failing to  consider            whether family ties,  although a "discouraged"  feature, were                                         -5-            "present in a manner  that is unusual or special  rather than            'ordinary.'" Rivera, 994  F.2d at 948.                         ______                 We conclude  that the district court  did not mistakenly            believe  that  it lacked  the  authority to  depart  from the            Sentencing Guidelines.   Therefore, its departure decision is            not  reviewable by  this court.     This appeal  is summarily            dismissed pursuant to Loc. R. 27.1.                                            -6-
