United States v. Labonte ( 1994 )

USCA1 Opinion

          March 22, 1994
                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 93-1726 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   GEORGE LABONTE,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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            Diane Powers on brief for appellant.
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            Jay P. McCloskey, United States  Attorney, and Michael  M. DuBose,
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        Assistant  United States Attorney, on  Memorandum in Support of Motion
        to Dismiss, for appellee.




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                      Per  Curiam.    Defendant-appellant George  Labonte
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            pled guilty  to possession with intent  to distribute cocaine

            and distribution  of it.   See 21  U.S.C.    841(a)(1).   The
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            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
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            States v.  Norflett, 922 F.2d 50, 54  n.5 (1st Cir. 1990), we
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            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









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            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
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            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.
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            Amparo,  961 F.2d 288, 292  (1st Cir.), cert.  denied, 113 S.
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            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.
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            2.  In  Norflett,  we  left  for  another  day  the  question
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            whether, in  view  of  23  U.S.C.    994(h),  departures  are
            prohibited in career  offender cases.  Norflett, 922  F.2d at
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            54 n.5.

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