United States v. Luhring-Badillo

Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-1165

UNITED STATES,

Appellee,

v.

LUIS LUHRING-BADILLO,

Plaintiff, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domnguez, U.S. District Judge]

Before

Torruella, Chief Judge, Selya and Boudin, Circuit Judges.

Luis Rafael Rivera on brief for appellant. Guillermo Gil, United States Attorney, Camille Velez-Rive, Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation Counsel, on brief for appellee.

July 27, 1998

Per Curiam. Upon careful review of the briefs and record, we are convinced that the district court understood its authority to depart and that it found no grounds to do so in this case. In particular, upon a thorough reading of the sentencing proceedings as a whole, it appears that the district court raised sua sponte the possibility of a departure for what it termed "extraordinary acceptance of responsibility," and, after discussion with counsel, decided that no departure was warranted under either U.S.S.G. 5K2.0 or U.S.S.G. 5K2.16. See United States v. Bennett, 60 F.3d 902, 905 (1st Cir. 1995). Further, we read the district court's concluding comments only as again rejecting the mental condition departure requested by defendant and as determining generally that defendant's case did not present any extraordinary circumstances warranting departure. Such a discretionary determination is not subject to appellate review. See United States v. Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996). Affirmed. See 1st Cir. Loc. R. 27.1.