United States v. Ovalles-Figuereo

69 F.3d 531, 1995 U.S. App. LEXIS 35972, 1995 WL 646250

Opinion

69 F.3d 531

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
UNITED STATES, Appellee,
v.
Felix OVALLES-FIGUEREO, Defendant, Appellant.

No. 95-1716.

United States Court of Appeals, First Circuit.

Nov. 2, 1995.

Douglas J. Rose and Jarret & Mitson, Inc. on brief for appellant.

Sheldon Whitehouse, United States Attorney, Margaret E. Curran and Edwin J. Gale, Assistant United States Attorneys, on brief for appellee.

Before TORRUELLA, Chief Judge, BOUDIN and STAHL, Circuit Judges.

PER CURIAM.

Appellant-defendant Felix Ovalles-Figuereo appeals on the sole ground that the district court erred in denying his motion for departure from the applicable guideline sentencing range pursuant to 18 U.S.C. Sec. 3553(b). "It is by now axiomatic that a criminal defendant cannot ground an appeal on a sentencing court's discretionary decision not to depart below the guideline sentencing range." United States v. Pierro, 32 F.3d 611, 619 (1st Cir.1994), cert. denied, --- U.S. ---, 115 S.Ct. 919 (1995). It is clear from the transcript of the sentencing hearing that the district court did not misapprehend its power to depart. It made a discretionary decision that a departure was not warranted on the facts of this case. We lack jurisdiction to review such exercises of discretion. Id. Therefore, this appeal is dismissed. See Loc. R. 27.1.