[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1499
UNITED STATES,
Appellee,
v.
SANTOS REYES-DE LA CRUZ, A/K/A SANTOS REYES-CRUZ, A/K/A,
ANTONIO GERMAN
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge.
Boudin and Lynch, Circuit Judges.
Benicio Sanchez Rivera, Federal Public Defender, and Gustavo A.
Gelpi, Assistant Federal Public Defender, on brief for appellant.
Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa,
Senior Litigation Counsel, Ernesto Hernandez-Milan, Assistant United
States Attorney, and Nelson Perez-Sosa, Assistant United States
Attorney, on brief for appellee.
October 6, 1995
Per Curiam. Appellant-defendant Santos Reyes de la Cruz
appeals on the sole ground that the district court erred in
denying his motion for a downward departure from the
guideline sentencing range pursuant to 4A1.3 of the United
States Sentencing Guidelines (U.S.S.G.). "It is by now
axiomatic that a criminal defendant cannot ground an appeal
on a sentencing court's discretionary decision not to depart
below the guideline sentencing range." United States v.
Pierro, 32 F.3d 611, 619 (1st Cir. 1994), cert. denied,
U.S , 115 S.Ct. 919 (1995). There is appellate
jurisdiction, however, "where the decision not to depart is
based on the sentencing court's assessment of its lack of
authority or power to depart." United States v. Morrison, 46
F.3d 127, 130 (1st Cir. 1995).
In determining whether the sentencing court
mistakenly believed it lacked authority to depart or "merely
refused to exercise its discretionary power to depart, we
consider the totality of the record and the sentencing
court's actions reflected therein." Morrison, 46 F.3d at 130.
The transcript from the sentencing hearing, considered in its
entirety, indicates that the district court was well aware of
its authority to depart pursuant to U.S.S.G. 4A1.3.
The judge read aloud the relevant paragraph from
that section which authorizes departures where a defendant's
criminal history category "significantly over-represents the
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seriousness of a defendant's criminal history . . . ." He
then concluded that such circumstances were not present in
this case. That determination was an exercise of his
discretion and is not reviewable on appeal. See Pierro, 32
F.3d at 619 (explaining that where a judge concludes that
"'this circumstance of which [the defendant] speak[s] has not
been shown to exist in this case,'" no appeal lies.).
The sentencing judge's statements that, absent the
guidelines, he would have imposed a less harsh sentence do
not reveal a misapprehension about his authority to depart.
Rather, they represent his correct understanding that he is
restrained by the guidelines in sentencing the defendant.
We lack jurisdiction to review the district court's
refusal to depart. Therefore, the appeal is dismissed. Loc.
R. 27.1.
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