
USCA1 Opinion

	




          October 31, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1609                                    UNITED STATES,                                      Appellee,                                          v.                                  MARY GAIL MALLOY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Tony F. Soltani on brief for appellant.            _______________            Paul  M. Gagnon,  United States  Attorney,  and Terry  L.  Ollila,            _______________                                 _________________        Assistant United  States Attorney, on Motion  for Summary Disposition,        for appellee.                                 ____________________                                 ____________________                 Per  Curiam.    Defendant-appellant  Mary   Gail  Malloy                 ___________            appeals on the sole  ground that the district court  erred in            denying  her  motion  for  a  downward  departure  from   the            guidelines  sentencing range  pursuant to  U.S.S.G.    5H1.4.            The government  argues that we lack jurisdiction and urges us            to dismiss the appeal.  We agree with the government.                   The sentencing  transcript  suggests that  the  district            court  may have made no final determination whether or not it            had the authority to  depart to a reduced prison  sentence as            requested by Malloy.   However, the  court clearly  concluded            that whether or not it  had such authority, the facts  in the            instant  case  do not  warrant  a downward  departure.   This            latter finding constitutes a discretionary refusal to depart.            Since it  is sufficient to support the sentence, the district            court's decision not to  depart is unreviewable.   See United                                                               ___ ______            States  v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995) (appeal            ______     ________            will not  lie from a district  court's discretionary decision            not  to depart);  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.
