
USCA1 Opinion

	




          July 12, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1043                                                UNITED STATES,                                      Appellee,                                          v.                                  MICHAEL J. DUCOING,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin                                   Circuit Judges.                                   ______________                                 ___________________               Steven J. Rappaport and Rappaport, Freeman & Pinta  on brief               ___________________     __________________________          for appellant.               Donald  K.  Stern,  United  States  Attorney,  and  Ben   T.               _________________                                   ________          Clements,  Assistant   United  States  Attorney,  on   brief  for          ________          appellee.                                  __________________                                  __________________                      Per Curiam.  Defendant-appellant Michael J. Ducoing                      __________            was  convicted of conspiracy  to commit bank  larceny, see 18                                                                   ___            U.S.C.   371, and bank robbery, see 18 U.S.C.   2113(a).  The                                            ___            district court  determined that Ducoing is  a career offender            under   the   Sentencing   Guidelines   and   sentenced   him            accordingly.  Ducoing challenges  his sentence, claiming that            the district court erred in denying his motion for a downward            departure, pursuant to U.S.S.G.   4A1.3, on  the grounds that            his  criminal  history   category  (VI)  over-represents  the            seriousness of his criminal  record.  We dismiss for  lack of            jurisdiction.                      We have  not addressed whether a downward departure            pursuant  to    4A1.3  is  permissible in  a  career offender            case.1   We need not resolve  this issue here.   The district            judge  did express  "serious doubts"  about his  authority to            depart downward.  However,  he concluded that even if  he had            the authority to depart  downward, he should not do  so given            the  "number  of  offenses  that qualify  here,"  the  "total            record," and the policies behind the career offender statute,            28 U.S.C.   994(h).   This latter finding, that the facts  do            not justify departing, constitutes a discretionary refusal to                                            ____________________            1.  A number of other circuits have held that such departures            are permitted.  See, e.g., United States v. Beckham, 968 F.2d                            ___  ____  _____________    _______            47, 54 (D.C. Cir. 1992) (citing  cases from the 4th, 8th, 9th            and 10th circuits).   In United States v. Norflett,  922 F.2d                                     _____________    ________            50, 54 n.5 (1st Cir. 1990), we reserved the question whether,            in view of 28  U.S.C.   994(h), departures are  prohibited in            career offender cases.                                          -2-            depart.   Since it is sufficient to support the sentence, the            district court's decision not to depart is unreviewable.  See                                                                      ___            United States v. Amparo, 961 F.2d 288, 292 (1st Cir.) (appeal            _____________    ______            will not lie from a district court discretionary decision not            to  depart), cert.  denied,  113 S.  Ct.  224 (1992);  United                         _____________                             ______            States  v. Williams,  898  F.2d 1400,  1403  (9th Cir.  1990)            ______     ________            (declining to  review district court's determination  that it            had  no authority to depart when court indicated it would not            depart even if it had authority to do  so).  Accordingly, the            appeal is dismissed.  See Loc. R. 27.1.                                     ___                                         -3-
