States v. Bernhardt, 840 F.2d 1441, 1449 (9th Cir.), cert. denied sub nom. McCarthy v. United States, 488 U.S. 954, 109 S.Ct. 389, 102 L.Ed.2d 379 (1988). The inability of a party to appeal from an adverse determination in the prior proceeding is a major factor to be considered. Standefer v. United States, 447 U.S. 10, 22-24, 100 S.Ct. 1999, 2007-08, 64 L.Ed.2d 689 (1980). Because the Government could not appeal from Judge Cahn’s discretionary refusal to depart upward, United States v. Evans, 49 F.3d 109, 111 (3rd Cir.1995), the doctrine’s requirement of an incentive to litigate fully is not present in this case. Moreover, Chief Judge Cahn did not make any adverse “ultimate fact” determinations in his discretionary refusal to make an upward departure. See Seley, 957 F.2d at 720-22 (<HOLDING>). The district court did not violate the
holding collateral estoppel elements met considering changed circumstances in the context of an exception to the general rule of collateral estoppel holding that collateral estoppel applies only where the antecedent judgment was a final judgment holding that the doctrine of collateral estoppel applies when an issue of ultimate fact has necessarily been determined by a valid final judgment holding that collateral estoppel applies to  1983 claims holding that collateral estoppel precludes future litigation between the same parties of ultimate facts that have been determined by valid and final judgments