
USCA1 Opinion

	




          March 22, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1726                                     UNITED STATES,                                      Appellee,                                          v.                                   GEORGE LABONTE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Diane Powers on brief for appellant.            ____________            Jay P. McCloskey, United States  Attorney, and Michael  M. DuBose,            ________________                               __________________        Assistant  United States Attorney, on  Memorandum in Support of Motion        to Dismiss, for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Defendant-appellant George  Labonte                      ___________            pled guilty  to possession with intent  to distribute cocaine            and distribution  of it.   See 21  U.S.C.    841(a)(1).   The                                       ___            district court  determined that Labonte is  a career offender            under   the   Sentencing   Guidelines   and   sentenced   him            accordingly.  Labonte 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-represented  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.   In  United                                                                   ______            States v.  Norflett, 922 F.2d 50, 54  n.5 (1st Cir. 1990), we            ______     ________            stated  that  to  the   extent  downward  departures  may  be            allowable in career offender cases,  "they must, at the  very            least, be  premised on the same  considerations of meaningful                                            ____________________            1.  A  number of  other  circuits  have  held  that     4A1.3            authorizes   a  downward  departure   when  criminal  history            category  VI,  assigned  pursuant  to  the   career  offender            guidelines, significantly over-represents the  seriousness of            a  defendant's past  criminal conduct  and the  likelihood of            recidivism.  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).            atypicality that apply across  the board."2   In  the instant            case, the  record is  clear that the  district court  assumed            that  it had  the authority  to depart  from the  guidelines.            After careful consideration  of defense counsel's  arguments,            however, the  district court exercised its  discretion not to            depart  because it  found  that the  "defendant does  fit the            classic   pattern  for   career  offender   status."     This            discretionary decision is unappealable.  See United States v.                                                     ___ _____________            Amparo,  961 F.2d 288, 292  (1st Cir.), cert.  denied, 113 S.            ______                                  _____________            Ct. 224 (1992) (appeal  will not lie from a  district court's            refusal to depart from a properly calculated sentencing range            unless  the   decision  stemmed  from  the  court's  mistaken            impression  that   it  lacked   the  authority   to  depart).            Accordingly, the case is dismissed.  See Loc. R. 27.1.                                                 ___                                            ____________________            2.  In  Norflett,  we  left  for  another  day  the  question                    ________            whether, in  view  of  23  U.S.C.    994(h),  departures  are            prohibited in career  offender cases.  Norflett, 922  F.2d at                                                   ________            54 n.5.                                         -3-
