United States v. Labonte

USCA1 Opinion








March 22, 1994
[NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1726

UNITED STATES,

Appellee,

v.

GEORGE LABONTE,

Defendant, Appellant.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge] ___________________

____________________

Before

Breyer, Chief Judge, ___________
Selya and Boudin, Circuit Judges. ______________

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Diane Powers on brief for appellant. ____________
Jay P. McCloskey, United States Attorney, and Michael M. DuBose, ________________ __________________
Assistant United States Attorney, on Memorandum in Support of Motion
to Dismiss, for appellee.




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Per Curiam. Defendant-appellant George Labonte ___________

pled guilty to possession with intent to distribute cocaine

and distribution of it. See 21 U.S.C. 841(a)(1). The ___

district court determined that Labonte is a career offender

under the Sentencing Guidelines and sentenced him

accordingly. Labonte challenges his sentence, claiming that

the district court erred in denying his motion for a downward

departure, pursuant to U.S.S.G. 4A1.3, on the grounds that

his criminal history category (VI) over-represented the

seriousness of his criminal record. We dismiss for lack of

jurisdiction.

We have not addressed whether a downward departure

pursuant to 4A1.3 is permissible in a career offender

case.1 We need not resolve this issue here. In United ______

States v. Norflett, 922 F.2d 50, 54 n.5 (1st Cir. 1990), we ______ ________

stated that to the extent downward departures may be

allowable in career offender cases, "they must, at the very

least, be premised on the same considerations of meaningful








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1. A number of other circuits have held that 4A1.3
authorizes a downward departure when criminal history
category VI, assigned pursuant to the career offender
guidelines, significantly over-represents the seriousness of
a defendant's past criminal conduct and the likelihood of
recidivism. See, e.g., United States v. Beckham, 968 F.2d ___ ____ _____________ _______
47, 54 (D.C. Cir. 1992) (citing cases from the 4th, 8th, 9th,
and 10th circuits).













atypicality that apply across the board."2 In the instant

case, the record is clear that the district court assumed

that it had the authority to depart from the guidelines.

After careful consideration of defense counsel's arguments,

however, the district court exercised its discretion not to

depart because it found that the "defendant does fit the

classic pattern for career offender status." This

discretionary decision is unappealable. See United States v. ___ _____________

Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113 S. ______ _____________

Ct. 224 (1992) (appeal will not lie from a district court's

refusal to depart from a properly calculated sentencing range

unless the decision stemmed from the court's mistaken

impression that it lacked the authority to depart).

Accordingly, the case is dismissed. See Loc. R. 27.1. ___


















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2. In Norflett, we left for another day the question ________
whether, in view of 23 U.S.C. 994(h), departures are
prohibited in career offender cases. Norflett, 922 F.2d at ________
54 n.5.

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