United States v. Crandall

• Court: Court of Appeals for the First Circuit
• Decided: January 8, 1999
• Docket: 98-1669
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-1669

UNITED STATES,

Appellee,

v.

RICHARD CRANDALL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

James T. McCormick on brief for appellant. Margaret E. Curran, United States Attorney, and Richard W. Rose, Assistant United States Attorney, on brief for appellee.

January 4, 1999

Per Curiam. Upon careful review of the briefs and record, we conclude that this appeal presents no substantial question for our review. On the record here, the government's refusal to recommend a departure under U.S.S.G. 5K1.1 cannot be said to be unconstitutional or, even assuming a bad faith standard, in bad faith. See Wade v. United States, 504 U.S. 181, 185-87 (1992); United States v. Catalucci, 36 F.3d 151, 153 (1st Cir. 1994). Even if that refusal was finally precipitated by defendant's denial of culpability for an airline ticket scam, still the refusal was not irrational. Assuming arguendo that the district court had some residual authority of its own (without a government motion) to depart based on defendant's assistance, in extraordinary circumstances, see United States v. Romolo, 937 F.2d 20, 25 (1st Cir. 1991) (reserving the question), no such circumstances are present here. Finally, defendant asserts that the district court might have misunderstood its authority to depart under 4A1.3 on the ground that defendant's criminal history category may have over- represented his true criminality. To the contrary, as we read the record, the district court assumed that it might have discretion for such a departure in an appropriate case, but concluded as a matter of discretion that no departure would be warranted in defendant's case. See United States v. Perez, F.3d , 1998 WL 798723 (1st Cir. November 23, 1998). Affirmed. See 1st Cir. Loc. R. 27.1.