December 13, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1652
UNITED STATES,
Appellee,
v.
LUIS RODRIGUEZ-PAULINO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Benito I. Rodriguez Masso on brief for appellant.
Guillermo Gil, United States Attorney, and Warren Vazquez,
Assistant United States Attorney, On Motion Requesting Summary
Disposition and Memorandum Of Law for appellee.
Per Curiam. Appellant, Luis Rodriguez Paulino,
objects to his sentence on the ground of the court's
erroneous perception that, in sentencing appellant below the
guideline sentencing range, it lacked authority to impose a
sentence lower than the sentences imposed on his
codefendants.1 Appellant has only a "very narrow right
to appeal." United States v. Soltero-Lopez, 11 F.3d 18, 19
(1st Cir. 1993). This court has ruled on several occasions
that "we have no jurisdiction to review the extent of a
downward departure merely because the affected defendant is
dissatisfied with the quantification of the district court's
generosity." United States v. Pighetti, 898 F.2d 3, 4 (1st
Cir. 1990); United States v. Pomerleau, 923 F.2d 5, 6 (1st
Cir. 1991).
"The ban on review is not absolute," however. Soltero-
Lopez, 11 F.2d at 20. This court has indicated its
willingness to review cases where a defendant alleges that
the court mistakenly believed it lacked legal authority to
depart, United States v. Rivera, 994 F.2d 942, 953 (1st Cir.
1993), or that the court's departure decision exhibited a
"fundamental misunderstanding" about how the guidelines work,
1. Appellant also contends that the sentence imposed is
inconsistent with the court's findings regarding his
diminished life expectancy and that home confinement would
have been a suitable alternative to imprisonment. We have no
jurisdiction to review those claims.
see Soltero-Lopez, supra, or in other "extraordinary
circumstances." See Pomerleau, 923 F.2d at 6.
Here, appellant has arguably alleged that the district
court believed that, in determining the extent of its
departure, it lacked power to impose a sentence below his
codefendants' sentences. This court therefore has
jurisdiction to review the sentence for evidence of such a
misunderstanding of the guidelines. The record, however,
does not reveal that the district court suffered from such a
misunderstanding. The district court's statements at
sentencing and its Sentencing Findings do not indicate that
it believed it lacked the legal authority to impose a
sentence below the codefendants' sentences. They merely
indicate that the district court considered codefendants'
sentences to be one relevant factor in arriving at a fair
sentence below the guideline sentencing range. This is well
within the court's broad discretion. See Pighetti, 898 F.2d
at 4 (noting that the extent of a departure is "essentially
discretionary"). As in Soltero-Lopez, supra, the record in
this case provides scant support for appellant's allegation
that the district court misunderstood the guidelines.
We have held that "a perceived need to equalize
sentencing outcomes for similarly situated codefendants,
without more, will not permit a departure from a properly
calculated guideline sentencing range." United States v.
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Wogan, 938 F.2d 1446 (1st Cir. 1991); see also United States
v. Carr, 932 F.2d 67, 73 (1st Cir. 1991). That rule,
however, does not extend to prohibit a sentencing court from
considering codefendants' sentences as one factor in
determining the extent of a departure.
The sentence is summarily affirmed pursuant to Loc. R.
27.1.
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