
USCA1 Opinion

	




          October 14, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1376                                     UNITED STATES,                                      Appellee,                                          v.                                  ANTHONY MCKINNEY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                          Bownes, Senior Circuit Judge, and                                  ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Edward J. Romano on brief for appellant.            ________________            Sheldon  Whitehouse, United  States Attorney,  Margaret E.  Curran            ___________________                            ___________________        and Lawrence  D. Gaynor, Assistant  United States Attorneys,  on brief            ___________________        for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   Appellant pleaded  guilty to  a two-                      ___________            count indictment charging him with violations of 18 U.S.C.               846  and  841(a)(1) &  (b)(1)(B)  concerning  a cocaine  base            conspiracy.    Because  appellant  had a  prior  drug  felony            conviction, he was subject to a mandatory minimum sentence of            ten years.  See   841(b)(1)(B).  The district court therefore                        ___            imposed  a  ten-year sentence.    Appellant's  only issue  on            appeal is whether the district court had the authority to sua            sponte  depart  downward  from  this  statutorily  prescribed            minimum  term  of  imprisonment  based  on  the  "substantial            assistance" he allegedly provided to the government.                      It is well settled that  a refusal by the  district            court to depart downward is not appealable.  United States v.                                                         _____________            Romolo, 937 F.2d  20, 22 (1st Cir. 1991).   See United States            ______                                      ___ _____________            v.  McAndrews, 12 F.3d 273, 276 (1st Cir. 1993) (general rule                _________            that  departure  decisions   are  non-appealable  applies  to            situation of  departures for substantial  assistance).   This            jurisdiction rule, in  turn, is subject to  the "equally well            recognized" principle that "appellate jurisdiction may attach            in those few  situations where the lower court's decision not            to depart is based on the court's mistaken view that it lacks            the legal  authority to consider  a departure."   Romolo, 937                                                              ______            F.2d at 22.                      Both  U.S.S.G.    5K1.1  and  18  U.S.C.    3553(e)            govern downward departures based on a defendant's substantial            assistance to the government.   However, these provisions are            activated only upon a motion by the government.  See  Wade v.                                                             ___  ____            United States, 112 S. Ct. 1840, 1843 (1992) (district court's            _____________            authority to depart downward  based on substantial assistance            is conditioned on  a motion by the government); United States                                                            _____________            v.  Mariano,  983  F.2d  1150,  1155  (1st   Cir.  1993)  ("a                _______            government  motion is a  sine qua  non to  a departure  for a                                     _____________            defendant's substantial assistance"); Romolo, 937 F.2d at  23                                                  ______            (same).                      Because the government did  not file such a motion,            the  district court  was correct  in stating  that it  had no            discretion  in the  matter.   As such,  we note  our lack  of            jurisdiction  and  summarily dismiss  the appeal  under Local                                         _______            Rule 27.1.                                         -3-
