
USCA1 Opinion

	




          December 13, 1994     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1652                                    UNITED STATES,                                      Appellee,                                          v.                               LUIS RODRIGUEZ-PAULINO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                             ______________                                 ____________________            Benito I. Rodriguez Masso on brief for appellant.            _________________________            Guillermo  Gil,  United  States  Attorney,  and  Warren   Vazquez,            ______________                                   ________________        Assistant  United  States  Attorney,  On  Motion  Requesting   Summary        Disposition and Memorandum Of Law for appellee.                                 ____________________                                 ____________________                                Per  Curiam.   Appellant,  Luis  Rodriguez Paulino,                      ___________            objects  to  his  sentence  on  the  ground  of  the  court's            erroneous perception that, in sentencing appellant below  the            guideline sentencing  range, it lacked authority  to impose a            sentence   lower  than   the   sentences   imposed   on   his            codefendants.1      Appellant has  only a "very  narrow right            to appeal." United  States v. Soltero-Lopez,  11 F.3d 18,  19                        ______________    _____________            (1st Cir. 1993).   This court has ruled on  several occasions            that  "we  have no  jurisdiction to  review  the extent  of a                                                             ______            downward departure  merely because the  affected defendant is            dissatisfied  with the quantification of the district court's            generosity." United  States v. Pighetti,  898 F.2d 3,  4 (1st                         ______________    ________            Cir.  1990); United States v.  Pomerleau, 923 F.2d  5, 6 (1st                         _____________     _________            Cir. 1991).                 "The ban  on review is not  absolute," however. Soltero-                                                                 ________            Lopez,  11  F.2d  at  20.    This  court  has  indicated  its            _____            willingness to  review cases  where a defendant  alleges that            the court  mistakenly believed  it lacked legal  authority to            depart,  United States v. Rivera, 994 F.2d 942, 953 (1st Cir.                     _____________    ______            1993),  or that  the court's  departure decision  exhibited a            "fundamental misunderstanding" about how the guidelines work,                                            ____________________            1.    Appellant also  contends that  the sentence  imposed is            inconsistent   with  the   court's  findings   regarding  his            diminished life  expectancy and  that home  confinement would            have been a suitable alternative to imprisonment.  We have no            jurisdiction to review those claims.            see   Soltero-Lopez,  supra,   or  in   other  "extraordinary            ___   _____________   _____            circumstances." See Pomerleau, 923 F.2d at 6.                              ___ _________                 Here, appellant  has arguably alleged  that the district            court  believed  that,  in  determining  the  extent  of  its            departure, it  lacked power  to impose  a sentence  below his            codefendants'   sentences.      This  court   therefore   has            jurisdiction to review  the sentence for  evidence of such  a            misunderstanding  of  the guidelines.   The  record, however,            does  not reveal that the district court suffered from such a            misunderstanding.   The   district   court's  statements   at            sentencing and  its Sentencing Findings do  not indicate that            it  believed  it  lacked  the legal  authority  to  impose  a            sentence  below the  codefendants'  sentences.   They  merely            indicate that  the  district court  considered  codefendants'            sentences to be  one relevant  factor in arriving  at a  fair            sentence below the  guideline sentencing range.  This is well            within the court's broad discretion.  See  Pighetti, 898 F.2d                                                  ___  ________            at 4 (noting that  the extent of a departure  is "essentially            discretionary").   As in Soltero-Lopez, supra,  the record in                                     _____________  _____            this case  provides scant support for  appellant's allegation            that the district court misunderstood the guidelines.                 We  have  held  that   "a  perceived  need  to  equalize            sentencing  outcomes  for  similarly  situated  codefendants,            without more,  will not permit  a departure  from a  properly            calculated  guideline sentencing  range."  United  States  v.                                                       ______________                                         -3-            Wogan,  938 F.2d 1446 (1st Cir. 1991); see also United States            _____                                  ___ ____ _____________            v.  Carr, 932  F.2d  67,  73 (1st  Cir.  1991).   That  rule,                ____            however, does not extend to  prohibit a sentencing court from            considering   codefendants'  sentences   as  one   factor  in            determining the extent of a departure.                  The sentence  is summarily affirmed pursuant  to Loc. R.                                            ________            27.1.                                         -4-
