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[NOT FOR PUBLICATION]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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