US v. Malloy
Case Date: 10/31/1995
Court: United States Court of Appeals
Docket No: 95-1609
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October 31, 1995 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 95-1609 UNITED STATES, Appellee, v. MARY GAIL MALLOY, Defendant, Appellant.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. |