United States v. Labonte

• Court: Court of Appeals for the First Circuit
• Decided: March 25, 1994
• Docket: 93-1726
• Status: Published

Opinion

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                                [NOT FOR PUBLICATION]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.

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                     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.

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____________________


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

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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
                         ___   ____  _____________     _______
            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.
                                                 ___

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            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.

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