
USCA1 Opinion

	




          November 18, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1895                                     UNITED STATES,                                      Appellee,                                          v.                                    KAYODE ALABI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Leo Wold and Goldenberg & Muri on brief for appellant.            ________     _________________            Edwin  J. Gale,  United  States  Attorney,  and Zechariah  Chafee,            ______________                                  _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.  Timothy  K. Alabi pled  guilty to two                      ___________            counts of  distributing heroin  in violation  of 18  U.S.C.              841(a)(1), and was sentenced to  serve 24 months in prison, a            sentence which was at the low end of the applicable guideline            range.  At sentencing, Alabi argued for a  downward departure            from  that guideline range, but  the court declined to depart            downward.   Alabi  has  appealed,  claiming  that  the  court            believed that it had no  legal authority to depart in Alabi's            case and  that departure was  justified.  Since we  find that            the court was aware that it had authority to depart downward,            but did not do so because it did not think that departure was            justified  under the circumstances, we dismiss the appeal for            lack of jurisdiction.  See  United States v. Romolo, 937 F.2d                                   ___  _____________    ______            20, 22 (1st Cir. 1991)  (a district court's refusal to depart            is  not appealable unless based  on the court's mistaken view            that it lacked the legal authority to consider a departure).                       At sentencing,  Alabi  claimed that  he deserved  a            downward departure for  various reasons:   he had worked  his            whole  life to  support his  wife and  four children;  he had            attended school and  received a college degree  while working            in order to  improve his ability to support his family; if he            were incarcerated, his  wife's income would not  be enough to            pay  the family's  expenses;  he  had  no  previous  criminal            record;  and  he had  agreed  to  distribute  heroin  on  two            occasions only at  the insistence of a friend  who needed his            help.   The government argued against any downward departure,            stating that  Alabi's case was  "utterly . . .  ordinary" and            within the "heartland" of guideline cases.  See United States                                                        ___ _____________            v.  Rivera, 994  F.2d 942,  947  (1st Cir.  1993) (under  the                ______            Sentencing  Guidelines, "unusual" cases that fall outside the            "heartland"  are  candidates for  departure;  the "heartland"            consists of typical  cases that embody the  conduct described            in the guidelines).                         Our review of the sentencing  transcript shows that            the court believed  that it had authority to  depart downward            in  unusual  cases  falling  outside  the  heartland  of  the            sentencing guidelines,  but that  the court  did not  believe            that Alabi's case was an unusual one.  In doing so, the court            evaluated  the  degree  to  which  factors  such  as  Alabi's            education,   employment   record,   and   family   ties   and            responsibilities deviated from the ordinary, and its analysis            tracked the  discussion and analysis  in Rivera, supra.   See                                                     ______  _____    ___            id. at 948 (factors such as education, employment record, and            ___            family ties and  responsibilities can remove a case  from the            heartland  and justify downward  departure, but only  if they            are present "in  a manner that is unusual  or special, rather            than 'ordinary.'").                        Against this backdrop, it is clear that the court's            comment regarding "forbidden"  grounds for departure  applied            only  to  the  "personal  financial  difficulties"  in  which                                         -3-            Alabi's  family would find itself if Alabi were incarcerated.            The court was correct in concluding that that factor would be            a  forbidden ground  for departure.   See U.S.S.G.    5K2.12,                                                  ___            p.s.  (1992) ("The  Commission  considered the  relevance  of            economic hardship  and  determined  that  personal  financial            difficulties . . . do  not warrant a decrease in sentence.");            Rivera, 994  F.2d at 949 (the sentencing court is not free to            ______            consider departing  on the basis of forbidden factors such as            personal  financial difficulties even if the factor makes the            case "unusual").  Likewise, in context, the court's complaint            about its lack of discretion appears to have been directed to            sentencing  under  the  guidelines in  general,  and  did not            reflect the court's belief that  it could not depart downward            on the basis of factors such as education, employment record,            and family ties and responsibilities.                       Appeal dismissed.                      ________________                                         -4-
