July 12, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1043
UNITED STATES,
Appellee,
v.
MICHAEL J. DUCOING,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Cyr and Boudin
Circuit Judges.
Steven J. Rappaport and Rappaport, Freeman & Pinta on brief
for appellant.
Donald K. Stern, United States Attorney, and Ben T.
Clements, Assistant United States Attorney, on brief for
appellee.
Per Curiam. Defendant-appellant Michael J. Ducoing
was convicted of conspiracy to commit bank larceny, see 18
U.S.C. 371, and bank robbery, see 18 U.S.C. 2113(a). The
district court determined that Ducoing is a career offender
under the Sentencing Guidelines and sentenced him
accordingly. Ducoing 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-represents 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. The district
judge did express "serious doubts" about his authority to
depart downward. However, he concluded that even if he had
the authority to depart downward, he should not do so given
the "number of offenses that qualify here," the "total
record," and the policies behind the career offender statute,
28 U.S.C. 994(h). This latter finding, that the facts do
not justify departing, constitutes a discretionary refusal to
1. A number of other circuits have held that such departures
are permitted. 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). In United States v. Norflett, 922 F.2d
50, 54 n.5 (1st Cir. 1990), we reserved the question whether,
in view of 28 U.S.C. 994(h), departures are prohibited in
career offender cases.
-2-
depart. Since it is sufficient to support the sentence, the
district court's decision not to depart is unreviewable. See
United States v. Amparo, 961 F.2d 288, 292 (1st Cir.) (appeal
will not lie from a district court discretionary decision not
to depart), cert. denied, 113 S. Ct. 224 (1992); United
States v. Williams, 898 F.2d 1400, 1403 (9th Cir. 1990)
(declining to review district court's determination that it
had no authority to depart when court indicated it would not
depart even if it had authority to do so). Accordingly, the
appeal is dismissed. See Loc. R. 27.1.
-3-