
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1499                                    UNITED STATES,                                      Appellee,                                          v.               SANTOS REYES-DE LA CRUZ, A/K/A SANTOS REYES-CRUZ, A/K/A,                                    ANTONIO GERMAN                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge.                                          ___________                          Boudin and Lynch, Circuit Judges.                                            ______________                                                                 ____________________            Benicio  Sanchez Rivera, Federal  Public Defender,  and Gustavo A.            _______________________                                 __________        Gelpi, Assistant Federal Public Defender, on brief for appellant.        _____            Guillermo  Gil, United  States Attorney,  Jose A. Quiles-Espinosa,            ______________                            _______________________        Senior Litigation Counsel,  Ernesto Hernandez-Milan, Assistant  United                                    _______________________        States  Attorney,  and  Nelson  Perez-Sosa,  Assistant  United  States                                __________________        Attorney, on brief for appellee.                                 ____________________                                   October 6, 1995                                 ____________________                 Per Curiam.  Appellant-defendant Santos Reyes de la Cruz                 __________            appeals on the sole  ground that the district court  erred in            denying  his  motion  for   a  downward  departure  from  the            guideline sentencing  range pursuant to  4A1.3  of the United            States  Sentencing  Guidelines (U.S.S.G.).    "It  is by  now            axiomatic that  a criminal defendant cannot  ground an appeal            on a sentencing court's  discretionary decision not to depart            below  the  guideline  sentencing  range." United  States  v.                                                       ______________            Pierro, 32 F.3d 611, 619 (1st Cir. 1994),   cert. denied, ___            ______                                      ____  ______            U.S  ___,  115  S.Ct.   919  (1995).    There   is  appellate            jurisdiction, however,  "where the decision not  to depart is            based on  the sentencing  court's assessment  of its  lack of            authority or power to depart." United States v. Morrison,  46                                           _____________    ________            F.3d 127, 130 (1st Cir. 1995).                      In   determining   whether  the   sentencing  court            mistakenly believed it lacked  authority to depart or "merely            refused  to exercise  its discretionary  power to  depart, we            consider  the  totality  of  the record  and  the  sentencing            court's actions reflected therein." Morrison, 46 F.3d at 130.                                                ________            The transcript from the sentencing hearing, considered in its            entirety, indicates that the district court was well aware of            its authority to depart pursuant to U.S.S.G.  4A1.3.                        The  judge read aloud  the relevant  paragraph from            that section which authorizes departures where a  defendant's            criminal history category "significantly  over-represents the                                         -3-            seriousness of  a defendant's criminal  history . . .  ."  He            then concluded  that such  circumstances were not  present in            this  case.    That  determination was  an  exercise  of  his            discretion and is not  reviewable on appeal.  See  Pierro, 32                                                          ___  ______            F.3d at  619 (explaining  that where  a judge  concludes that            "'this circumstance of which [the defendant] speak[s] has not            been shown to exist in this case,'" no appeal lies.).                      The sentencing judge's statements that,  absent the            guidelines, he  would have imposed  a less harsh  sentence do            not reveal  a misapprehension about his  authority to depart.            Rather, they  represent his correct understanding  that he is            restrained by the guidelines in sentencing the defendant.                       We lack jurisdiction to review the district court's            refusal to depart.  Therefore, the appeal is dismissed.  Loc.                                                         _________            R. 27.1.                                                            -4-
