                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit


No. 03-1854

                              UNITED STATES,

                                 Appellee,

                                      v.

                         RICHARD RYAN HOLMES,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Morris E. Lasker, Senior U.S. District Judge]


                                   Before

                      Torruella, Circuit Judge,
                  Campbell, Senior Circuit Judge,
                     and Selya, Circuit Judge.



     William M. White, Jr., and Davis, Robinson & White, LLP, on
brief for appellant.
     Michael J. Sullivan, United States Attorney, and Dina Michael
Chaitowitz, Assistant U.S. Attorney, on Motion for Summary
Disposition.

                            October 14, 2004
       Per   Curiam.        Ryan    Holmes    pled        guilty     to   one   count     of

manufacturing counterfeit money. After violating conditions of his

pre-trial release, Holmes was ordered to enter an in-patient drug

treatment program.          At the time of sentencing, he had successfully

completed the program, had been drug-free for seven months and had

obtained employment.               In sentencing Holmes, the district court

granted a        two-level    reduction       in    his    base      offense    level    for

acceptance of responsibility and sentenced him at the low end of

the applicable guideline sentencing range (33 months).                           However,

the court denied Holmes' request for a downward departure based on

pre-sentence rehabilitation. Holmes is appealing from that denial.

       The government has filed a motion for summary affirmance. The

government posits that the district court's denial represents an

unreviewable exercise of its discretion.                       The government further

contends,        however,    that    the     meaning      of   the    district    court's

ambiguous explanation for its denial need not be resolved because

affirmance is appropriate where, as in this case, it is clear that

there is no colorable basis for a departure.                              We agree that

affirmance is warranted on these grounds.

       This court cannot review "a discretionary decision not to

depart on the facts of the particular case." United States v.

Rodriguez, 327 F.3d 52, 54 (1st Cir. 2003). However, we may "review

a refusal to depart where the refusal rests upon a legal mistake,

such   as    a    mistaken     assumption          that    a   particular       ground    is


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generically impermissible as a basis for departure." Id.             Holmes

argues that the district court's refusal to depart falls within the

latter category, while the government characterizes it as within

the former category.

     The   sentencing   judge   stated   that   he   believed   he   lacked

authority to grant the departure on the grounds requested. He made

an apparent reference to the PROTECT Act (effective 4/30/03), which

he noted had further restricted the authority of federal judges to

grant departures, and concluded that he was "legally prevented"

from granting a downward departure. See 18 U.S.C. § 3742(e).            He

referred to the possibility of an appeal. Neither the ambiguity of

the district court's statement nor the expressed intent that the

defendant be permitted to appeal his sentence settles the question

of reviewability.   See Rodriquez, 327 F.3d at 55; United States v.

Morrison, 46 F.3d 127, 131 (1st Cir. 1995).

     Based upon a careful review of the sentencing transcript and

defendant's motion for a downward departure, we agree with the

government that "the district court merely meant that in addition

to the absence of extraordinary facts supporting a departure, the

PROTECT Act's de novo review requirements also militated against

departure." Government's Motion for Summary Disposition, p. 5. The

district court stated that it lacked authority to depart "under the

practices [defendant] propose[s] in [his] motion" and "on the

grounds that are included in the request."           At the time of this


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sentencing, it was well established that "[i]n an appropriate case,

.    .   .     extraordinary      presentence      rehabilitation      can   ground   a

downward departure." United States v. Craven, 239 F.3d 91, 99 (1st

Cir. 2001) ("Craven I").

         "The PROTECT Act changed the standard of review applied to

departures         from    the     guidelines,       eliminating       the   deference

previously accorded to a district court's application of the

guidelines to the facts of the case."                United States v. Derbes, 369

F.3d 579, 581 (1st Cir. 2001).                  The sentencing court's statements

do       not    establish        that     the     district    court     fundamentally

misinterpreted the effect of the PROTECT Act as eliminating all

discretion to grant a downward departure for extraordinary pre-

sentence rehabilitation.                Nor do we agree with appellant that the

district court's statements of approval of appellant's apparent

success in overcoming his drug addiction represented a finding that

his efforts were "extraordinary."                   Instead, it appears that the

court's refusal to depart was based upon its conclusion that a

departure on the facts of this case would be reversed by this court

applying the de novo standard of review applicable under the

PROTECT        Act.       As   such,      the    district    court's    discretionary

determination that the facts supporting the request for downward

departure did not rise to the level of "extraordinary" pre-sentence

rehabilitation, is not reviewable by this court.

         In the alternative, even if the district court's departure


                                            -4-
denial could fairly be interpreted to rest upon a legal mistake,

remand would not be necessary.    This court has held that even where

the district court mistakenly believed it lacked authority to

depart, "where the record provides no basis for departure on any

ground, we are not required to remand to the District Court."

United States v. Gendraw, 337 F.3d 70, 72 (1st Cir. 2003); see

United States v. Mayes, 332 F.3d 34, 37 (1st Cir. 2003); Rodriguez,

327 F.3d at 55.   This is such a case because the facts supporting

appellant's departure request do not warrant a departure for

extraordinary pre-sentence rehabilitation.

     "[I]t is well settled that a defendant's efforts to overcome

his drug addiction, while certainly commendable, will ordinarily

not support a downward departure." United States v. Sklar, 920 F.2d

107, 117 (1st Cir. 1990).    This is especially so where such efforts

"were largely prompted by the specific mandates of his pretrial

release agreement."    Id.    Even overcoming drug addiction is not

"the equivalent of extraordinary rehabilitation nor a guaranteed

ticket to a downward departure on that basis."       Craven I, 239 F.3d

at 100.   In several cases, this court has reversed departures for

extraordinary rehabilitation based on a defendant's efforts to

purge himself of addiction. See e.g., United States v. Craven, 358

F.3d 11, 15 (1st Cir. 2004) ("Craven II"); Sklar, 920 F.2d at 117;

see also United States v. Rushby, 936 F.2d 41, 43 (1st Cir. 1991)

(affirming   refusal   to    depart     on   basis   of   pre-sentencing


                                  -5-
rehabilitation, including successful treatment for drug and alcohol

addiction).

     Based on our precedents, a departure in Holmes' case for

extraordinary pre-sentence rehabilitation would not be warranted.

Essentially, the departure was sought on the basis that Holmes has

successfully participated for several months in the drug treatment

program that the court ordered him to enter.         Although he had been

a cooperative and enthusiastic participant and had voluntarily

participated in addiction recovery groups and obtained employment,

those factors do not distinguish his case from Sklar or Rushby.

Appellant    argues   that   his   case   is   different   because   of   his

difficult and abusive family history and his long history of

substance abuse and drug addiction, without prior counseling or

treatment.    However, "drug addiction [and] a troubled childhood .

. . do not constitute permissible bases for departing below the

[guideline sentencing range].         See U.S.S.G. §§ 5H1.4; 5H1.12."

Mayes, 332 F.3d at 37 n.4. In a nutshell, the circumstances of this

case do not "indicate the existence of meaningfully atypical

rehabilitation."      Sklar, 920 F.2d at 117.

     The district court's denial of appellant's motion for a

departure from the guideline sentencing range is affirmed.                The

sentence appealed from is, therefore, affirmed.




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