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[NOT FOR PUBLICATION]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.
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.
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
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.
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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