United States of America, Appellee, v. Dana Pighetti, Defendant, Appellant, 898 F.2d 3 (1st Cir. 1990)

Defendant-appellant Dana Pighetti pled guilty to a charge of conspiracy to distribute upwards of 500 grams of cocaine, in violation of 21 U.S.C. § 846. The district court computed the total offense level, after all appropriate adjustments, as aggregating 34 points. See generally United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.) (explaining method of computation under sentencing guidelines), cert. denied, --- U.S. ----, 110 S. Ct. 177, 107 L. Ed. 2d 133 (1989); United States v. Wright, 873 F.2d 437, 440 (1st Cir. 1989) (similar). Appellant's criminal history category was I (no significant prior record). This translated to a presumptive sentencing range of 168-210 months. But, the court elected to disregard the guidelines, departed downward, and sentenced Pighetti to seven years (84 months) in prison.

Pighetti appeals, claiming that the extent of the downward departure was too niggardly given his cooperation with the government. (The prosecution recommended a four-year sentence.) In this respect, he also asserts that the district court impermissibly "consider[ed] other offense behavior where that behavior was not a proper component of sentencing information," Appellant's Brief at p. 7, thereby infringing his constitutional rights. We conclude that we are without jurisdiction to hear Pighetti's appeal.

For most of this century, the instances in which defendants might rewardingly appeal sentences falling within the limits allowed by the statute of conviction were few and far between. See United States v. Ruiz-Garcia, 886 F.2d 474, 476-77 & n. 4 (1st Cir. 1989) (discussing historical background and evolution). The Sentencing Reform Act, as amended, 18 U.S.C.A. Secs. 3551-3585 (West 1985 & Supp.1988); 28 U.S.C.A. Secs. 991-998 (West Supp.1988), opened the door much wider. However, the new law did not give defendants the right to appeal sentences on demand. Rather, it sought "to establish a 'limited practice of appellate review of sentences in the Federal criminal justice system.' " United States v. Tucker, 892 F.2d 8, 10 (1st Cir. 1989) (quoting S.Rep. No. 225, 98th Cong., 1st Sess. (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3332) (emphasis supplied by Tucker panel). To effectuate this end, Congress provided that a defendant could appeal a sentence which:

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b) (6) or (b) (11) than the maximum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C.A. Sec. 3742(a) (West Supp.1988).

We have held, squarely and recently, that a sentencing court's decision not to depart from the guidelines is unappealable. Tucker, supra. Accord United States v. Franz, 886 F.2d 973 (7th Cir. 1989); United States v. Colon, 884 F.2d 1550 (2d Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 553, 107 L. Ed. 2d 550 (1989). We today take the next logical step: for much the same reasons as were expressed in Tucker, 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.¹  That is to say, the extent of a departure, like the decision to depart itself, is essentially discretionary, see Diaz-Villafane, 874 F.2d at 52, and the statute affords no grounds for the beneficiary of a departure decision to complain that the deviation should have been greater.

Pighetti's contention that the district court incorrectly assessed other relevant conduct makes no difference in our analysis. As counsel conceded at oral argument, if the interdicted behavior had been excised, a favorable two point adjustment in the base offense level would have resulted--and the sentence imposed would still have represented a downward departure, hence, not appealable by the accused. Because Pighetti's sentence was not imposed "in violation of law" or as a direct consequence of an "incorrect application" of the guidelines, 18 U.S.C. § 3742(a), we cannot consider his speculation that, had the sentencing range been lower (albeit still above the sentence actually imposed), or the perception of other conduct more tolerant, the judge might have exhibited even greater leniency.² 

Appellant's attempt to bootstrap appellate standing by reference to the Constitution is equally unavailing. Despite appellant's bombastic statement of the issue, see supra at p. 4, he points to no reliance by the sentencing court on "improper or inaccurate information," see, e.g., Dorszynski v. United States, 418 U.S. 424, 431 n. 7, 94 S. Ct. 3042, 3047 n. 7, 41 L. Ed. 2d 855 (1974);³  rather, his contention boils down to a claim that the court drew a sorely erroneous inference from the information at hand. Merely saying that the court had a mistaken impression of the facts does not mean either that a defendant was sentenced on the basis of "false" information or that an appeal will lie from a downward departure. The Due Process Clause neither ensures that a defendant's version of the truth will be accepted at sentencing nor obligates the government to prove pertinent facts beyond a reasonable doubt. McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S. Ct. 2411, 2418-19, 91 L. Ed. 2d 67 (1986) (in sentencing matters, preponderance standard satisfies due process requirements); United States v. Blanco, 888 F.2d 907, 908-09 (1st Cir. 1989). In a nutshell, a defendant cannot confer a right of review on himself simply by challenging the conclusions drawn by the trier from subsidiary facts.

We need go no further. Defendant cannot appeal the district court's decision to circumscribe the extent of a downward departure more severely than defendant might have liked. We lack appellate jurisdiction.

Appeal dismissed.