
USCA1 Opinion

	




          December 14, 1992     [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1626                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   VICTOR GALLEGO,                                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                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Jonathan F. Oster and Oster & Groff on brief for appellant.               _________________     _____________               Lincoln  C. Almond,  United States  Attorney, and  Zechariah               __________________                                 _________          Chafee, Assistant United States Attorney, on brief for the United          ______          States.                              _________________________                              _________________________                    Per  Curiam.     This  criminal  appeal   involves  two                    ___________          assignments  of  error  derived   from  the  same  circumstances.          Defendant-appellant Victor  Gallego appeals the  district court's          failure to  depart downward  from the guideline  sentencing range          either because of the defendant's epilepsy or  because his motive          for  the  crime was  allegedly to  accumulate  the money  that he          needed to pay for epilepsy medication.  We dismiss the appeal for          want of appellate jurisdiction.                    We have said, time and  again, that "a district court's          refusal to depart, regardless of the suggested direction, is  not          appealable."  United States v. Romolo, 937  F.2d 20, 22 (1st Cir.                        _____________    ______          1991); accord, e.g., United  States v. Amparo, 961 F.2d  288, 292                 ______  ____  ______________    ______          (1st  Cir.), cert. denied, 121  L.Ed.2d 161 (1992); United States                       _____ ______                           _____________          v.  Hilton, 946 F.2d  955, 957 (1st Cir.  1991); United States v.              ______                                       _____________          Harotunian, 920 F.2d 1040, 1044 (1st Cir. 1990); United States v.          __________                                       _____________          Ruiz,  905 F.2d  499, 508-09  (1st Cir.  1990); United  States v.          ____                                            ______________          Pighetti,  898  F.2d 3,  4-5 (1st  Cir.  1990): United  States v.          ________                                        ______________          Tucker, 892 F.2d 8, 10-11 (1st Cir. 1989).  A narrow exception to          ______          this  rule exists "if the  record supports an  inference that the          sentencing  court's  failure  to  depart  did  not  represent  an          exercise  of  fact-finding or  discretion,  but  was instead  the          product of the court's  miscalculation about whether it possessed          the  authority   to  depart."   Amparo, 961  F.2d  at 292.   That                                          ______          exception has no relevance here.                    The colloquy  at  sentencing makes  it perfectly  plain          that  the district judge knew he possessed the legal authority to                                          2          depart downward if the  defendant suffered from an "extraordinary          physical impairment,"  U.S.S.G.    5H1.4, but  declined to  do so          because he believed defendant's epilepsy to be  "a sickness which          can very definitely be  controlled through the proper   taking of          medication" and, therefore, not "within the degree  of severity .          . . which would warrant departure."  Sentencing Transcript at 12-          13.  This was a judgment call, pure and simple, fully supportable          on the record and unreviewable on appeal.  See, e.g., Amparo, 961                                                     ___  ____  ______          F.2d at 292; Hilton, 946 F.2d at 959-60.                         ______                    We do not think it advances appellant's cause that  his          asserted  motive  for drug  trafficking  was  to obtain  cash  to          purchase  medication helpful  in controlling  his epilepsy.   The          sentencing  guidelines  do not  provide  for downward  departures          based on economic hardship.   U.S.S.G.   5K2.12 ("The  Commission          considered the relevance of economic hardship and determined that          personal financial difficulties .  . . do not warrant  a decrease          in sentence.").   Because the Sentencing Commission was  aware of          economic hardship as a possible  motivation for crime, a downward          departure under U.S.S.G.    5K2.0 cannot rest on it.   See, e.g.,                                                                 ___  ____          United  States  v. Pozzy,  902 F.2d  133,  139 (1st  Cir.), cert.          ______________     _____                                    _____          denied, 111 S.Ct. 353 (1990).1          ______                                        ____________________               1At  any  rate,  we  seriously  question  whether  a  lesser          sentence  could be imposed in this case given the mandatory terms          of  the  statute of  conviction.   See  21 U.S.C.    841(b)(1)(B)                                             ___          (1991); United States v.  Rodriguez, 938 F2d 319 (1st  Cir. 1991)                  _____________     _________          (district  court impermissibly contravened  statute in sentencing          below mandatory minimum).   We  are, of course,  bound to  follow          Rodriguez, notwithstanding appellant's  veiled suggestion that we          _________          overrule it.  See,  e.g., United States v. Wogan,  938 F.2d 1446,                        ___   ____  _____________    _____          1449  (1st Cir.)  (reiterating  that, in  a multi-panel  circuit,                                          3                    We  need go no further.  There  is no sign in this case          "that the sentencing judge  was unaware of his power to depart or          misperceived the legal standard."   Amparo, 961 F.2d at 292.   To                                              ______          the  contrary, the judge found  the pertinent facts, employed the          proper standard, and refused  to reduce the sentence.   "When, as          here, a  judge declines  to depart  after he or  she has  made an          application of settled law  to idiosyncratic facts, the  court of          appeals lacks jurisdiction to second-guess the decision."  United                                                                     ______          States v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992).          ______    _______                    Appeal dismissed.  See 1st Cir. Loc. R. 27.1.                       ________________   ___                                        ____________________          newly  constituted  panels are  bound  by  prior panel  decisions          closely in point), cert. denied, 112 S.Ct. 441 (1991).                             _____ ______                                          4
