USCA1 Opinion
November 18, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1895
UNITED STATES,
Appellee,
v.
KAYODE ALABI,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Leo Wold and Goldenberg & Muri on brief for appellant.
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Edwin J. Gale, United States Attorney, and Zechariah Chafee,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Timothy K. Alabi pled guilty to two
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counts of distributing heroin in violation of 18 U.S.C.
841(a)(1), and was sentenced to serve 24 months in prison, a
sentence which was at the low end of the applicable guideline
range. At sentencing, Alabi argued for a downward departure
from that guideline range, but the court declined to depart
downward. Alabi has appealed, claiming that the court
believed that it had no legal authority to depart in Alabi's
case and that departure was justified. Since we find that
the court was aware that it had authority to depart downward,
but did not do so because it did not think that departure was
justified under the circumstances, we dismiss the appeal for
lack of jurisdiction. See United States v. Romolo, 937 F.2d
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20, 22 (1st Cir. 1991) (a district court's refusal to depart
is not appealable unless based on the court's mistaken view
that it lacked the legal authority to consider a departure).
At sentencing, Alabi claimed that he deserved a
downward departure for various reasons: he had worked his
whole life to support his wife and four children; he had
attended school and received a college degree while working
in order to improve his ability to support his family; if he
were incarcerated, his wife's income would not be enough to
pay the family's expenses; he had no previous criminal
record; and he had agreed to distribute heroin on two
occasions only at the insistence of a friend who needed his
help. The government argued against any downward departure,
stating that Alabi's case was "utterly . . . ordinary" and
within the "heartland" of guideline cases. See United States
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v. Rivera, 994 F.2d 942, 947 (1st Cir. 1993) (under the
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Sentencing Guidelines, "unusual" cases that fall outside the
"heartland" are candidates for departure; the "heartland"
consists of typical cases that embody the conduct described
in the guidelines).
Our review of the sentencing transcript shows that
the court believed that it had authority to depart downward
in unusual cases falling outside the heartland of the
sentencing guidelines, but that the court did not believe
that Alabi's case was an unusual one. In doing so, the court
evaluated the degree to which factors such as Alabi's
education, employment record, and family ties and
responsibilities deviated from the ordinary, and its analysis
tracked the discussion and analysis in Rivera, supra. See
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id. at 948 (factors such as education, employment record, and
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family ties and responsibilities can remove a case from the
heartland and justify downward departure, but only if they
are present "in a manner that is unusual or special, rather
than 'ordinary.'").
Against this backdrop, it is clear that the court's
comment regarding "forbidden" grounds for departure applied
only to the "personal financial difficulties" in which
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Alabi's family would find itself if Alabi were incarcerated.
The court was correct in concluding that that factor would be
a forbidden ground for departure. See U.S.S.G. 5K2.12,
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p.s. (1992) ("The Commission considered the relevance of
economic hardship and determined that personal financial
difficulties . . . do not warrant a decrease in sentence.");
Rivera, 994 F.2d at 949 (the sentencing court is not free to
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consider departing on the basis of forbidden factors such as
personal financial difficulties even if the factor makes the
case "unusual"). Likewise, in context, the court's complaint
about its lack of discretion appears to have been directed to
sentencing under the guidelines in general, and did not
reflect the court's belief that it could not depart downward
on the basis of factors such as education, employment record,
and family ties and responsibilities.
Appeal dismissed.
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