October 14, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1376
UNITED STATES,
Appellee,
v.
ANTHONY MCKINNEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Cyr, Circuit Judge,
Bownes, Senior Circuit Judge, and
Stahl, Circuit Judge.
Edward J. Romano on brief for appellant.
Sheldon Whitehouse, United States Attorney, Margaret E. Curran
and Lawrence D. Gaynor, Assistant United States Attorneys, on brief
for appellee.
Per Curiam. Appellant pleaded guilty to a two-
count indictment charging him with violations of 18 U.S.C.
846 and 841(a)(1) & (b)(1)(B) concerning a cocaine base
conspiracy. Because appellant had a prior drug felony
conviction, he was subject to a mandatory minimum sentence of
ten years. See 841(b)(1)(B). The district court therefore
imposed a ten-year sentence. Appellant's only issue on
appeal is whether the district court had the authority to sua
sponte depart downward from this statutorily prescribed
minimum term of imprisonment based on the "substantial
assistance" he allegedly provided to the government.
It is well settled that a refusal by the district
court to depart downward is not appealable. United States v.
Romolo, 937 F.2d 20, 22 (1st Cir. 1991). See United States
v. McAndrews, 12 F.3d 273, 276 (1st Cir. 1993) (general rule
that departure decisions are non-appealable applies to
situation of departures for substantial assistance). This
jurisdiction rule, in turn, is subject to the "equally well
recognized" principle that "appellate jurisdiction may attach
in those few situations where the lower court's decision not
to depart is based on the court's mistaken view that it lacks
the legal authority to consider a departure." Romolo, 937
F.2d at 22.
Both U.S.S.G. 5K1.1 and 18 U.S.C. 3553(e)
govern downward departures based on a defendant's substantial
assistance to the government. However, these provisions are
activated only upon a motion by the government. See Wade v.
United States, 112 S. Ct. 1840, 1843 (1992) (district court's
authority to depart downward based on substantial assistance
is conditioned on a motion by the government); United States
v. Mariano, 983 F.2d 1150, 1155 (1st Cir. 1993) ("a
government motion is a sine qua non to a departure for a
defendant's substantial assistance"); Romolo, 937 F.2d at 23
(same).
Because the government did not file such a motion,
the district court was correct in stating that it had no
discretion in the matter. As such, we note our lack of
jurisdiction and summarily dismiss the appeal under Local
Rule 27.1.
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