Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1990)

MEMORANDUM^* 

John E. Johns seeks to appeal from his sentence under the Sentencing Guidelines following his conviction for possession of stolen mail in violation of 18 U.S.C. § 708. He contends that the district court erred in refusing to make a downward departure from the Sentencing Guidelines in his case. Johns argued before the district court that downward departure was justified for three reasons.

First, Johns argued that although he had already received in the Guideline computations a two-point downward adjustment for acceptance of responsibility, the circumstances surrounding his acceptance were so unusual that a downward departure was warranted.

Second, he contended that, although the Sentencing Guidelines provide that ordinarily the emotional consequences of imprisonment should not be considered in sentencing, the consequences to him in the circumstances of his case would be so serious that they should be taken into account in making a downward departure.

Third, he contended that, although the presentence report accurately stated his past criminal history and correctly computed the sentence under the guidelines reflecting that history, a downward departure was justified because of the nature of the defendant's criminal record. Specifically, he requested a downward departure on the ground that his misdemeanor convictions for driving under the influence, conducting business without a license and petty theft warranted a lesser sentence than the range for which the guidelines call.

This court has recently held that there is no appeal from a district court's discretionary refusal to depart downward from the Sentencing Guidelines. U.S. v. Morales, 898 F.2d 99 (9th Cir. 1990). Anticipating this ruling, the appellant contends that his is not an appeal from a discretionary decision but from the district court's erroneous conclusion that it was not authorized to depart from the Guidelines, regardless of the circumstances. See United States v. Cheape, 889 F.2d 477, 480-81 (3d Cir. 1989); see also Morales, 898 F.2d at 102 n. 2 (hinting at the prudence of the Cheape approach). He asks us to follow the ruling of the Third Circuit in holding that such a ruling is appealable.

We need not reach that issue in this case, however, because here the district court did not make a legal conclusion that it was not authorized to depart. Rather, the district court heard appellant's ably presented contentions that his was such an extraordinary case that downward departure was warranted. The court exercised its discretion in holding that Johns' particular case did not warrant departure. The record reflects that the court ruled that the circumstances raised by appellant were not so extreme so as to fall outside the scope of factors the Guidelines took into account. The court indicated that for that reason it did not have to reach the question of what downward departure would be reasonable. See U.S. v. Lira-Barraza, 897 F.2d 981, 986 (9th Cir. 1990) (departure, if warranted, must be reasonable under 18 U.S.C. § 3742(e) (3)).

Accordingly, since this is an attempt to appeal from a discretionary decision of the district court not to make a downward departure from the Sentencing Guidelines, the appeal is DISMISSED.