
USCA1 Opinion

	




        October 24, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                         -2-                 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.                 ________   ___                                         -3-
