October 31, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1609
UNITED STATES,
Appellee,
v.
MARY GAIL MALLOY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Tony F. Soltani on brief for appellant.
Paul M. Gagnon, United States Attorney, and Terry L. Ollila,
Assistant United States Attorney, on Motion for Summary Disposition,
for appellee.
Per Curiam. Defendant-appellant Mary Gail Malloy
appeals on the sole ground that the district court erred in
denying her motion for a downward departure from the
guidelines sentencing range pursuant to U.S.S.G. 5H1.4.
The government argues that we lack jurisdiction and urges us
to dismiss the appeal. We agree with the government.
The sentencing transcript suggests that the district
court may have made no final determination whether or not it
had the authority to depart to a reduced prison sentence as
requested by Malloy. However, the court clearly concluded
that whether or not it had such authority, the facts in the
instant case do not warrant a downward departure. This
latter finding constitutes a discretionary refusal to depart.
Since it is sufficient to support the sentence, the district
court's decision not to depart is unreviewable. See United
States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995) (appeal
will not lie from a district court's discretionary decision
not to depart); United States v. Williams, 898 F.2d 1400,
1403 (9th Cir. 1990) (declining to review district court's
determination that it had no authority to depart when court
indicated it would not depart even if it had authority to do
so). Accordingly, the appeal is dismissed. See Loc. R.
27.1.