United States v. Rijos

September 28, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1647

UNITED STATES,

Appellee,

v.

SANTOS RIJOS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Cyr, Circuit Judge,

Bownes, Senior Circuit Judge, and

Stahl, Circuit Judge.

Benicio Sanchez Rivera, Federal Public Defender, and Miguel A.A.

Nogueras-Castro, Assistant Federal Public Defender, on brief for

appellant.
Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa,

Senior Litigation Counsel, and Miguel A. Pereira, Assistant United

States Attorney, on brief for appellee.

Per Curiam. Santos Rijos appeals his sentence on

the ground that the district court mistakenly believed that

it lacked authority to depart downward from the Sentencing

Guidelines. We dismiss for lack of appellate jurisdiction.

Rijos pleaded guilty to a one-count indictment

charging him with unlawfully reentering the United States

after deportation following a felony conviction, in violation

of 8 U.S.C. 1326(b)(1). The pre-sentence report (PSR)

calculated a total offense level of 21, as follows: the base

offense level of 8 was increased by 16 levels because the

felony that led to Rijos' deportation was an aggravated

felony; three levels were subtracted for Rijos' acceptance of

responsibility for his actions and for timely notifying

authorities of his intention to plead guilty. The PSR

computed a criminal history category of III, resulting in a

guideline imprisonment range of 46 to 57 months. The

district court sentenced Rijos to 46 months in prison.

At the sentencing hearing, Rijos' attorney asked the

district court to make a downward departure from the

Guidelines sentence pursuant to U.S.S.G. 5K2.0. The two

grounds for the requested departure were: 1) economic

hardship in the Dominican Republic, the country to which

Rijos had been deported, and 2) Rijos' cooperation with the

government. The district court denied the request. With

respect to the first ground, the district court found as

follows:

[Rijos] was deported September, 1992, he was back
here in November of 1992 by plane not by boat, so
apparently his hardship isn't that bad because he
came by plane, and of course if he has family in
New York I am sure that that was his primary
concern, to come and see his family. Of course, he
could have waited until his supervised release was
over and then requested permission in writing.

With respect to the second ground (cooperation with the

government), the court responded "that's why I gave him a 3

level reduction."

On appeal, Rijos argues that the court erred in refusing

to consider appellant's extent of cooperation with the

government and his "family ties and responsibilities," since

neither feature is a forbidden basis for departure. Rijos

states in his brief that "the district court failed to

consider the relevant facts and to what extent if any he

could exercise his discretion." Therefore, Rijos seeks a

remand to the district court for re-sentencing.

In deciding whether we have jurisdiction to review this

sentencing we apply the following rule:

Ordinarily a district court's refusal to exercise
its discretion to depart downward from the
sentencing guidelines is not reviewable on appeal.
Appellate jurisdiction does attach, however, where
the sentencing court's decision not to depart is
based on the court's mistaken view that it lacks
the legal authority to consider a departure. In
other words, where the court errs in determining
whether the allegedly special circumstances are of
the "kind" that the Guidelines, in principle,
permit the sentencing court to consider, we may

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proceed to review the court's sentencing decision
not to depart. On the other hand, if "we find that
the court properly understood its power to depart,
but refused to exercise that power, we lack
jurisdiction to consider the appeal."

United States v. Romero, No. 93-2187, slip op. at 28-29 (1st

Cir. Aug. 29, 1994) (citations omitted).

Here, the district court did not possess a mistaken

belief that it lacked the authority to depart from the

guidelines. Therefore, we lack jurisdiction to review its

departure decision. If the district court erred, it was in

believing that it had discretion to depart where there was

none, not the reverse. The "special circumstances" for which

Rijos requested a downward departure were financial hardship

and cooperation with the government. Economic hardship is

one of the few "forbidden" features which may not be the

basis for a decision to depart from the guideline sentence.

See United States v. Rivera, 994 F.2d 942, 949 (1st Cir.

1993); U.S.S.G. 5K2.12, p.s. Nonetheless, the district

court considered Rijos' alleged hardship and concluded that

"his hardship isn't that bad."

Rijos also sought a downward departure for his

cooperation with the government by pleading guilty to the

offense. Assistance to the government in the investigation

or prosecution of another person who has committed an offense

is "encouraged" as a ground for departure. See U.S.S.G.

5K1.1. The voluntary disclosure of an offense prior to its

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discovery is also an "encouraged" feature. See U.S.S.G.

5K2.16, p.s. Here, however, Rijos requested a downward

departure solely on the basis of his acceptance of

responsibility at the time of his guilty plea.

The Guidelines specifically provide for a three-level

reduction in the offense level for such circumstances. See

U.S.S.G. 3E1.1. That provision does not preclude the court

from departing from the Guidelines, however, "if the court

determines that, in light of unusual circumstances, the

guideline level attached to that factor is inadequate."

U.S.S.G. 5K2.0, p.s. There is nothing in the record to

support Rijos' contention that the district court

misunderstood that it could depart downward based upon a

defendant's cooperation with the government in "unusual

circumstances," notwithstanding 3E1.1. Rather, we think

that the district court concluded that there were no "unusual

circumstances" present to render the three-level reduction in

the offense level under 3E1.1 inadequate.

In his appellate brief, Rijos seems to allege that the

district court erred in not considering his "family ties"

before denying his departure request. The record does not

indicate, however, that family ties was one of the grounds

upon which Rijos requested a departure. Therefore, the

district court cannot be faulted for failing to consider

whether family ties, although a "discouraged" feature, were

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"present in a manner that is unusual or special rather than

'ordinary.'" Rivera, 994 F.2d at 948.

We conclude that the district court did not mistakenly

believe that it lacked the authority to depart from the

Sentencing Guidelines. Therefore, its departure decision is

not reviewable by this court. This appeal is summarily

dismissed pursuant to Loc. R. 27.1.

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