§860 Refusal to Depart Not Appealable
8th Circuit says refusal to depart for mental health is not appealable. (860) Defendant, who pleaded guilty to making interstate threats and assault, sought a lower sentence because of his mental health. He then tried to appeal the district court’s refusal to depart on this ground. The Eighth Circuit said that a refusal to depart is not subject to appeal, unless the district court commits constitutional error or misunderstands its ability to depart. U.S. v. Feeback, __ F.4th __ (8th Cir. Nov. 28, 2022) No. 22-1307.
1st Circuit finds refusal to depart is not appealable. (860) At defendant’s sentencing for drug smuggling, he sought a downward departure under § 5H1.6 for family ties and responsibilities. The district court denied the downward departure, and defendant appealed. The First Circuit held that a discretionary refusal to depart is not appealable. U.S. v. Castillo-Vazquez, __ F.3d __ (1st Cir. Apr. 16, 2021) No. 19-1152.
8th Circuit says denial of departure based on family ties is unreviewable. (690)(860) Defendant sought a downward departure under § 5H1.6 from his drug-trafficking sentence based on his difficult upbringing in Mexico. The district court denied the departure. In the Eighth Circuit, a departure is unreviewable on appeal unless the district court had an unconstitutional motive or erroneously thought it was without authority to grant a departure. Without elaborating, the Eighth Circuit found that neither circumstance was present, so it denied review of defendant’s requested departure. U.S. v. Angeles-Moctezuma, __ F.3d __ (8th Cir. June 24, 2019) No. 18-3227.
6th Circuit finds refusal to depart unreviewable where court knew it could depart. (715)(860) Defendant, a pilot, was convicted of operating an airplane while under the influence of alcohol, in violation of 18 U.S.C. § 342. The guideline for that offense, § 2D2.3, states that a departure may be warranted if “no or only a few passengers were placed at risk.” The district court denied the departure, stating that the guideline is “permissive” and that “the facts of this case [do not] warrant a departure.” The Sixth Circuit held that the district court’s failure to depart was not reviewable on appeal because the court was aware that it had the authority to depart. U.S. v. Fitzgerald, __ F.3d __ (6th Cir. Oct. 15, 2018) No. 17-2285.
11th Circuit says it lacked jurisdiction to review denial of downward departure request. (742)(860) Defendant, a tax protester, was convicted of making false, fictitious or fraudulent claims on his federal income tax returns, and of corruptly interfering with administration of internal revenue laws. His guideline range was 51-63 months. He sought a downward departure under §§5H1.3 and 5K2.13, arguing that he suffered from anxiety disorder, delusional disorder, and a personality disorder, and was unable to understand the consequences of his behavior. He also sought a downward variance based on his alleged diminished capacity. The district court sentenced him within his guideline range to 56 months. Because the record reflected that the court fully understood its authority to depart, and listened to the parties’ arguments for and against the departure, the Eleventh Circuit held that it lacked jurisdiction to review the court’s denial of defendant’s downward departure request. In addition, defendant did not show that his sentence was procedurally or substantively unreasonable. The district court heard testimony, explained its sentence, and noted that it considered the PSR, filings by counsel, and the §3553(a) factors. The court did not abuse its discretion in declining to grant a downward variance. U.S. v. Croteau, __ F.3d __ (11th Cir. Apr. 11, 2016) No. 15-11720.
2nd Circuit affirms even though court did not expressly discuss arguments for departure or variance. (742) (860) Defendant pled guilty to firearms charges, and was sentenced to 15 years of imprisonment. The Second Circuit found no error in the district court’s decision not to expressly discuss and reject defendant’s arguments for a downward departure and a variance. Nothing in the record suggested that the judge misunderstood his authority to depart downward, and in imposing the sentence he plainly considered the relevant factors under 18 U.S.C. §3553(a). A district court’s decision not to depart downward is “within the court’s broad discretion and rarely reviewed on appeal.” Nor need a sentencing judge recite every §3553(a) argument raised by a defendant. Here, defendant did not identify anything in the record suggesting that the judge failed to consider the §3553(a) factors or his arguments in support of a variance. U.S. v. Young, __ F.3d __ (2d Cir. Jan. 29, 2016) No. 14-2383-CR.
2nd Circuit upholds refusal to depart downward for allegedly substandard conditions in prison. (715)(742) (860) Defendant argued that the district court erred in failing to depart downward because of his confinement in the allegedly decrepit and unsafe conditions at the Nassau County Correctional Center (NCCC). The Second Circuit ruled that defendant failed to provide sufficient reason to overturn the district court ‘s failure to depart. First, a district court’s decision not to depart from the guidelines is generally unreviewable, unless it misunderstood its authority to do so. There was nothing in the record suggesting that the district court misunderstood its ability to depart from the Guidelines. After implying that a departure would be possible, albeit a “special consideration,” the court listened to arguments on the merits of a downward departure. Second, the district court adequately explained its reasoning, noting its past experience with other NCCC inmates. The court further suggested that the evidence provided by appellant ‘s counsel was insufficient to justify a departure. U.S. v. Robinson, __ F.3d __ (2d Cir. Aug. 26, 2015) No. 14-809-cr.
11th Circuit upholds refusal to depart or grant downward variance in fraud case. (742)(860) Defendant was convicted of multiple charges related to his participation in a complex Medicare fraud scheme. He received a guideline sentence of 100 months, but argued on appeal that the court erred in failing to grant him a downward departure, or in the alternative, a downward variance. The Eleventh Circuit held that it lacked jurisdiction to review the district court’s discretionary refusal to grant defendant’s request for a downward departure, as the district court did not express a belief that it lacked authority to depart. The district court considered the 18 U.S.C. §3553(a) factors, and noted that, based on defendant’s actions in this case and his perjury at trial, the starting point for a reasonable sentence was above the advisory guidelines range. Nevertheless, the district court recognized defendant’s significant contributions to his community and gave him credit for receiving only roughly $80,000 in salary and no other financial remuneration. Defendant’s attempt to compare himself to co-conspirator Hamer was unpersuasive, as they were not similarly situated. U.S. v. Moran, __ F.3d __ (11th Cir. Feb. 17, 2015) No. 12-16056.
1st Circuit affirms court’s refusal to depart downward for criminal history. (860) Defendant was sentenced to 76 months, which fell within his 70-87 month advisory range. He argued that the district court should have departed downward under § 4A1.3(b)(1), claiming that the one point assigned to his marijuana offense was in error, and that the court should have found excessive the two points for his cocaine conviction because it occurred over 12 years earlier. The First Circuit affirmed the sentence. Defendant’s argument about the marijuana offense was a “dead end,” because subtracting one point would not have altered his criminal history category. The panel also rejected defendant’s claim with regard to the cocaine and marijuana offenses. A district court’s discretionary decision not to depart from the Guidelines is reviewed for reasonableness. The district court met this standard. It considered defendant’s arguments but explained that a departure was unwarranted because of defendant’s criminal history, the seriousness of his offenses, and the timing of their occurrence. U.S. v. Battle, 637 F.3d 44 (1st Cir. 2011).
1st Circuit permits reasonableness review of judge’s refusal to depart. (860) Defendant challenged on appeal the extent of the substantial assistance departure he received. Under pre-Booker law, when the Sentencing Guidelines were mandatory, courts routinely held that discretionary departure decisions were not reviewable unless the sentencing court misunderstood its authority to depart or committed an error of law. Based on its en banc decision in U.S. v. Jimenez-Beltre, 440 F.3d 514 (1st Cir. 2006), abrogated by Rita v. U.S., 551 U.S. 338, 127 S.Ct. 2456 (2007), the First Circuit held that all sentences imposed under the advisory Guidelines, subject to one exception not applicable here, are open to reasonableness review, including those that entail either a discretionary refusal to depart or a departure whose extent is contested. In following the dictates of Booker and deciding whether the imposed sentence is reasonable, the reviewing court, in effect, resolves any question as to whether the extent of the departure is reasonable. Accordingly, it had jurisdiction to review defendant’s claim challenging the extent of his departure. U.S. v. Anonymous, 629 F.3d 68 (1st Cir. 2010).
1st Circuit finds 432-month sentence for drug conspirator was reasonable, even though it was three times longer than sentence of any other conspirator. (860) Defendant argued that his 432-month sentence on the drug conspiracy count was unreasonable as a matter of law, noting that the sentence was over three times as long as that imposed on any other member of the conspiracy. The First Circuit found the sentence reasonable and adequately explained. Defendant was not similarly situated to other members of the conspiracy. One conspirator testified that she took orders from defendant and that he beat her up on a number of occasions. Other conspirators pled guilty and provided substantial assistance to the government. In addition, defendant’s criminal history was more extensive than his co-conspirators’. The court explained its reasons for the sentence, repeatedly expressing disappointment that defendant refused to take responsibility for the situation in which he found himself, and failed to express any remorse for his actions. The court wrote in its Statement of Reasons that defendant was “an unrepentant and dangerous dealer in illicit drugs and firearms.” It found a 432-month sentence “sufficient to punish [defendant] and to deter him and others from similar conduct,” while still preserving the possibility that defendant would “have some period of freedom in the sunset of his life.” U.S. v. Pierre, 484 F.3d 75 (1st Cir. 2007).
1st Circuit finds no jurisdiction to review failure to depart based on duress defense rejected at trial. (860) Defendants were crew members on a fishing vessel containing 5,000 pounds of marijuana. At their drug-trafficking trial, they claimed that they had been hired as fisherman, then coerced into serving as a crew during the smuggling venture. A jury rejected defendants’ coercion defense and convicted them of drug trafficking offenses. At sentencing, defendants sought a downward departure under § 5K2.12 on the ground that they committed the offense under duress. The district court decided not to depart. The First Circuit held that the district court’s decision did not rest on a miscalculation about whether it had the authority to depart and therefore that it lacked jurisdiction to consider defendants’ contention that the district court erred in failing to depart. U.S. v. Bravo, 480 F.3d 88 (1st Cir. 2007).
1st Circuit agrees that caselaw precluded rehabilitation departure. (860) Defendant argued that the district court erroneously concluded that it did not have the legal authority to depart downward based on his poor health and his presentence rehabilitation. Although a district court’s discretionary denial of a departure is not appealable, a refusal to depart based on a misunderstanding of the law is reviewed de novo. Here, with regard to the requested poor health departure, the district court reasoned that defendant would receive adequate health care in prison; it did not suggest that it was legally constrained from granting a health-related departure. Therefore, the First Circuit refused to review this issue. As to defendant’s presentence rehabilitation, the district court ruled that the “degree of discretion” afforded by the caselaw did not extend to the circumstances of the case. The panel agreed with this conclusion — caselaw precluded a downward departure based on defendant’s obtaining employment and beginning a drug treatment program. See, e.g., U.S. v. Rushby, 936 F.2d 41 (1st Cir. 1991). U.S. v. Monteiro, 417 F.3d 208 (1st Cir. 2005).
1st Circuit finds no evidence that court was unaware of authority to depart. (860) Defendant requested a downward departure based on the government’s delay in prosecuting defendant in order to protect an informant from being detected as such. He argued that this delay foreclosed the possibility of his federal sentence running concurrently with his state sentence and that a departure should have been granted so that he would not be prejudiced. The district court declined to depart, but did not provide a clear reason for its decision. Defendant asserted that the district court believed that it did not have the authority to grant the departure based on its statement “if I look at all the relevant material, I cannot find that this departure is authorized.” The First Circuit found that his statement clearly related to defendant’s other departure request, and that there was no basis for concluding that the court believed it was precluded from granting the departure. U.S. v. Kornegay, 410 F.3d 89 (1st Cir. 2005).
1st Circuit cannot review refusal to grant family circumstances departure. (860) Defendant contended the district court abused its discretion in failing to grant a downward departure to reflect the extraordinary family circumstances his incarceration and his wife’s imminent deportation would have upon his three children. However, a discretionary refusal to depart is not appealable if the district court correctly applied the guidelines. Here, the court recognizing the “unfortunate fact of life” that both parents may face imprisonment, and expressly declined to depart under § 5H1.6. Therefore, the First Circuit ruled that it lacked authority to review the refusal to depart. U.S. v. Morgan, 384 F.3d 1 (1st Cir. 2004).
1st Circuit rules that court implicitly recognized authority to depart. (860) Note 1 to § 2A1.1, the first degree murder guideline, authorizes a downward departure if “the defendant did not cause the death intentionally or knowingly.” The district court found that defendant had urged a co-conspirator to shoot the victims and had offered to kill them himself if the co-conspirator faltered. Implicit in these findings was the court’s conclusion that defendant had an intent to kill, and thus, he was ineligible for the desired departure. Therefore, the First Circuit ruled that it had no jurisdiction to review the court’s refusal to depart under Note 1. U.S. v. Sanchez, 354 F.3d 70 (1st Cir. 2004).
1st Circuit holds that substantial rights were not affected by refusal to depart to grant credit for time served. (860) Defendant argued that the court erred in failing to consider a downward departure based on a three-year sentence that he served in the Dominican Republic for drug trafficking offenses. Defendant argued that the court failed to recognize its authority to depart downward under § 5K2.0 to credit him for time served. However, defendant did not request a downward departure on this basis at sentencing, but only argued that his sentence should be at the lower end of the guideline range. The First Circuit found that defendant’s failure to request a downward departure on this ground in the district court foreclosed its consideration of the issue. Moreover, even if it reviewed the claim for plain error, his argument would be was unavailing. Defendants who seek credit for discharged sentences must ordinarily apply to the Attorney General, through the Bureau of Prisons, under 18 U.S.C. § 3585(b). However, even assuming that the district court had the power to depart downward on this basis, defendant’s substantial rights were not affected. Defendant could still apply to the Bureau of Prisons under § 3585(b) to obtain credit for his time served in the Dominican Republic. U.S. v. Morales-Madera, 352 F.3d 1 (1st Cir. 2003).
1st Circuit lacks authority to review where court made discretionary decision not to depart. (860) Defendant requested a downward departure under § 5H1.6 for “unusual family circumstances.” The district judge rejected defendant’s motion, citing his extensive criminal background and his failure to take advantage of numerous opportunities for rehabilitation. The First Circuit held that because the district court recognized its legal authority to depart, but simply chose not to, it would not review the discretionary decision. An appellate court lacks jurisdiction to review a discretionary decision not to depart from the Sentencing Guidelines. U.S. v. Capelton, 350 F.3d 231 (1st Cir. 2003).
1st Circuit says statement that court saw “no way” to go under guideline range did not show misunderstanding of departure authority. (860) Defendant argued that the court’s misunderstood its ability to depart, pointing to the court’s statement that it saw “no way” to go under the low end of the sentencing range obtained by the use of criminal history III. The First Circuit found this statement was taken out of context, since defendant never made a request for a downward departure. The comment was made in connection with the court’s determination as to which criminal history category, and thus, which guideline range applied. The panel rejected defendant’s claim that the district court should have departed sua sponte. There was no error, let alone an obvious error, in the sentencing court’s failure to depart downward. U.S. v. Rodriguez-Castillo, 350 F.3d 1 (1st Cir. 2003).
1st Circuit has no discretion to review refusal to depart. (860) Defendant maintained that the district court erred in denying a downward departure notwithstanding the fact that, as a deportable alien, he would not have the benefit of various ameliorative programs such as a halfway house and a work release program, which would be available to comparable non-alien prisoners. Absent any evidence that the district court erroneously believed that it lacked the discretionary power to depart downward in these alleged factual circumstances, the First Circuit found it had no jurisdiction to review the decision not to depart. U.S. v. Reynoso, 336 F.3d 46 (1st Cir. 2003).
1st Circuit rules court was aware of authority to depart. (860) The district court declined defendant’s request for a criminal history departure, stating that defendant had not presented “sufficient facts” to warrant such a departure. The district court thus clearly “expressed that it had taken into account the arguments for a downward departure but concluded that the assigned criminal history category ‘adequately and appropriately’ represented [defendant’s] extensive criminal history.” Consequently, the First Circuit lacked jurisdiction to review the denial of the downward departure. U.S. v. Tom, 330 F.3d 83 (1st Cir. 2003).
1st Circuit holds that court’s statement left ambiguity as to its understanding of ability to depart. (860) Defendant sought a downward departure for a variety of reasons, which the court denied. The court stated “I am going to deny the motion for downward departure. And I am going to do it on the basis that I don’t believe I have, on this record that I have authority which raises an appellate issue for you if you care to take advantage of it. So I am denying it, as I say, because I don’t feel as though I have authority on this record to grant it.” The First Circuit held that the court’s statement that it did not believe it had authority to depart downward was ambiguous, and it remanded for clarification. The court statements taken together could mean that none of the reasons offered for a departure fell within a legal category allowing departures. Alternatively, they could mean that one or more reasons did fall in such a category allowing departures but, on the facts of the case, the judge was not persuaded to grant a departure (because the judge did not think that the factor was present to a degree that would justify a departure). U.S. v. Rodriguez, 327 F.3d 52 (1st Cir. 2003).
1st Circuit cannot review where court was aware of discretion to depart. (860) Defendant sought review of the district court’s decision not to depart downward pursuant to U.S.S.G. § 5H1.4, which authorizes a departure for “an extraordinary physical impairment.” At sentencing, defendant presented evidence that he had only one remaining kidney as a result of an emergency nephrectomy performed in 1985, suffered from cirrhosis and calcified arteries, and had a demonstrated family history of hearth disease. Missing from the record was any evidence that the Bureau of Prisons would be unable to provide the appropriate treatment for him or that incarceration itself would aggravate his condition. The First Circuit upheld the district court’s refusal to depart, finding the district court clearly recognized its authority to depart, and declined to exercise that authority. There was nothing in the record to suggest that the court believed that it lacked the legal authority to depart under § 5H1.4. Instead, the court reviewed the circumstances, understood it had the discretion to depart, and concluded that the circumstances were not sufficiently extraordinary to warrant a departure. This was a judgment call, not one reviewable on appeal. U.S. v. Lujan, 324 F.3d 27 (1st Cir. 2003), habeas corpus granted in part by Lujan v. U.S., 2004 WL 2044302 (D.N.H. Sep. 14. 2004) No. CIV 04-247-SM.
1st Circuit holds that motive of returning to U.S. to care for daughter was equivalent to family ties and responsibilities. (860) Defendant was convicted of illegally reentering the U.S. after deportation. He argued that he should receive a downward departure because his motivation for returning, to care for his young daughter, took him out of the “heartland” of illegal reentry defendants. The First Circuit found that defendant’s claim was essentially based on factors accounted for in U.S.S.G. § 5H1.6, family ties and responsibilities. There is nothing in the text of § 5H1.6 stipulating that family ties and responsibilities is only a discouraged factor in assessing the consequences of a sentence and not in assessing the culpability for a crime. Therefore, the court did not reach the separate question of whether motivation as a separate category is ever a permissible ground for departure. The district court found that the facts of defendant’s family ties and responsibilities were not sufficiently exceptional to warrant a departure on this ground. Because the court did not misunderstand its legal authority to depart, but merely exercised its jurisdiction not to do so, the First Circuit lacked jurisdiction to review the court’s refusal to depart. U.S. v. Mejia, 309 F.3d 67 (1st Cir. 2002).
1st Circuit has no discretion to review refusal to depart for physical impairment. (860) Defendant, paralyzed and confined to a wheelchair since 1967, requested a downward departure under § 5H1.4 for an extraordinary physical impairment. The sentencing court expressly recognized its legal authority to depart but declined to do so. The court spoke in terms of the lack of justification for the departure, rather than its ability to depart. Accordingly, the First Circuit ruled that it lacked authority to review the refusal to depart. The sentencing court was not required to make an explicit factual finding concerning his claim that his physical and mental disabilities constituted an extraordinary physical impairment. While particularized findings have sometimes been required to support a departure, only one circuit has expressly imposed such a requirement on a decision not to grant a § 5H1.4 departure. See U.S. v. Fisher, 55 F.3d 481 (10th Cir. 1995). Moreover, the sentencing court’s detailed assessment of defendant’s physical condition would certainly comply with any such requirement. U.S. v. Woodward, 277 F.3d 87 (1st Cir. 2002).
1st Circuit cannot review where refusal to depart was based on exercise of discretion. (860) Defendant argued that the district court erred in refusing to depart from the guidelines based on the “atypical” facts of his case. He claimed that his attempted reentry into the U.S. was merely an attempt to be reunited with his wife and children, who reside in this country, and that he possessed a sincere desire to enter drug rehabilitation so that he could take better care of his family. However, a district court’s refusal to depart from the guidelines may not be reviewed unless the court misconstrued its legal authority to depart. Because the district court did not misunderstand its legal authority under the guidelines, the First Circuit found no basis to disturb the sentence imposed. U.S. v. Encarnacion, 239 F.3d 395 (1st Cir. 2001).
1st Circuit has no jurisdiction to review refusal to depart. (860) Defendant challenged the district court’s refusal to depart downward, complaining that three of his five criminal history points resulted from a prior sentence that barely qualified as such under §§ 4A1.1(a) and 4A1.2(e). However, because defendant did not claim that the district court committed legal error in calculating his criminal history, the First Circuit ruled that it lacked jurisdiction to review his claim. The panel also refused to consider defendant’s claim that the court should have departed because his conviction stemmed from a government sting operation. The court did not deny defendant’s request because it thought it lacked the authority to depart, but because it declined to exercise its discretion to do so. Its decision, therefore, was not subject to appellate review. U.S. v. Baltas, 236 F.3d 27 (1st Cir. 2001).
1st Circuit holds that improper conviction is not grounds for downward departure. (860) Defendant argued that the district court failed to give adequate consideration to four potential grounds for a downward departure: (1) his conviction rested on an erroneous jury instruction; (2) the government improperly paid a key witness for his testimony; (3) there was no compelling federal interest in prosecuting defendant’s local offense; and (4) defendant’s criminal history category overstated the seriousness of his criminal past. The First Circuit ruled that all of the asserted grounds were meritless. The first two grounds for departure were insufficient as a matter of law. Even if defendant’s conviction rested on an erroneous jury instruction and the testimony of an unlawfully compensated witness, neither factor was relevant to sentencing. A trial error or a prosecutorial misdeed does not, in and of itself, permit a downward departure. The third asserted ground for departure—the supposed lack of any compelling federal interest to justify his federal prosecution—was likewise flawed as a matter of law. To justify a defendant’s federal prosecution, there need only be a federal interest, not a compelling federal interest. Here, such interest was supplied by the Commerce Clause. The district court’s decision not to depart based on defendant’s “overstated” criminal history was not reviewable on appeal. U.S. v. Snyder, 235 F.3d 42 (1st Cir. 2000).
1st Circuit cannot review refusal to make discretionary downward departure. (860) Defendant asserted that he was entitled to a downward departure under one of four theories: his extraordinary rehabilitation, his substantial assistance to the government, the fact that his wrongdoing was a single, aberrant incident, and because he did not profit from the embezzlement. The First Circuit held that it could not review the refusal to depart. The record indicated that the court considered a downward departure and found that no factors were present that would support such a departure. U.S. v. Walker, 234 F.3d 780 (1st Cir. 2000).
1st Circuit has no discretion to review discretionary refusal to depart. (860) Defendant argued that she should have received a downward departure because she had a difficult upbringing and because extended incarceration would disrupt her relationship with her three young children. The First Circuit ruled that the district court was aware of its discretion to depart downward and therefore the court’s refusal to depart was not reviewable. The court noted that it could depart downward if “big, major, unique circumstances” warranted a sentence below the applicable guideline range. The court chose not to exercise that discretion because, in its view, defendant’s family circumstances were not sufficiently unusual to justify a reduced sentence. The appellate court could not second-guess this finding. U.S. v. Vega-Coreano, 229 F.3d 288 (1st Cir. 2000).
1st Circuit has no jurisdiction to review extent of departure designed to reduce disparity among defendants. (860) Defendant received a downward departure because the court found such a departure was needed “to provide a rough proportionality amongst the various sentences for all the participants so that this sentence, dictated by the guidelines, is not out of sync … with the other sentences, some of which have been arrived at by departures as well for other reasons.” Defendant now argued that the district court did not depart far enough because he was less culpable than other defendants who received downward departures. The First Circuit noted that it had no jurisdiction to review the extent of a departure merely because the affected defendant is dissatisfied with the quantification of the district court’s generosity. The government noted that any downward departure based solely on the perceived need “to equalize sentencing outcomes for similarly situated codefendants” is unlawful. However, since the government did not cross-appeal, this issue was not before the appellate court. U.S. v. Coviello, 225 F.3d 54 (1st Cir. 2000).
1st Circuit has no jurisdiction to review refusal to depart for family circumstances. (860) Defendant requested a downward departure based on his responsibility to care for his ailing father. However, the record made clear that the trial court knew that it could have departed had it found that defendant’s family situation warranted it. The district court considered and rejected the claimed mitigation. The First Circuit refused to “second-guess this implicit conclusion” that defendant’s family responsibilities did not distinguish his case from the ordinary one. “The court of appeals has no authority to review a district court’s discretionary decision not to depart, whether upward or downward, unless the putative appellant can show that the district court acted in the mistaken belief that it lacked the ability to depart.” U.S. v. Ortiz-Santiago, 211 F.3d 146 (1st Cir. 2000).
1st Circuit rules that district court properly limited departures for post-sentence rehabilitation. (860) At his resentencing in April 1999, defendant argued that he should be granted a downward departure because he had substantially rehabilitated himself during his latest imprisonment. The court agreed that it had discretion to depart for post-sentence rehabilitation, but said that this would be justified only “in the most rare case” and was not warranted by the facts presented. Defendant argued that the district court committed legal error by limiting its authority to depart to “the most rare cases.” In U.S. v. Bradstreet, 207 F.3d 76 (1st Cir. 2000) [summarized below], the First Circuit held that departure for post-sentence rehabilitation is permissible where achievement is present “to an exceptional degree,” but that such departures would be “highly infrequent.” In the present case, the First Circuit ruled that the district court’s approach was consistent with the later-decided Bradstreet. “There is no magic to particular terms like “most rare,” “exceptional,” and “highly infrequent.” Absent a mistake of law, a refusal to depart is not reviewable. U.S. v. Caron, 208 F.3d 321 (1st Cir. 2000).
1st Circuit rules court aware of authority to depart. (860) Defendant, a federal inmate, was convicted of assaulting Santana, a fellow prisoner. Defendant had claimed at trial that Santana had threatened to “crack open” defendant’s head, and that he had received information that Santana planned to attack him. The district court rejected defendant’s request for a downward departure under §§ 5K2.10 (victim’s conduct) and 5K2.12 (coercion and duress). Defendant argued that the district court did not understand that it could invoke duress and coercion as grounds for departure even though it had rejected self-defense and duress as complete defenses to conviction. The First Circuit found nothing in the sentencing transcript that suggested that the court misunderstood its authority to depart. The sentencing transcript “betrays the incredulity of the trial judge at the claim being made.” The colloquy between the court and defense counsel turned entirely on the facts of the case. U.S. v. Bello, 194 F.3d 18 (1st Cir. 1999).
1st Circuit refuses to depart for HIV defendant in good physical condition. (860) Defendant requested a downward departure because she was HIV positive and her dependent child had AIDS. The First Circuit held that the district court properly recognized that it lacked the authority to depart downward, because defendant’s medical and physical condition did not constitute an “extraordinary physical impairment.” Although defendant was HIV positive, she did not have advanced AIDS. Defendant remained in relatively good physical condition. The Bureau of Prisons determined that defendant had no difficulty with either her emotional or physical health. As for the fact that her son has AIDs, the district court recognized that it had the power to depart in exceptional family circumstances. Since the court fully recognized its authority to depart, but chose not to do so, the appellate court lacked jurisdiction over the claim. U.S. v. Rivera-Maldonado, 194 F.3d 224 (1st Cir. 1999).
1st Circuit lacks jurisdiction to review failure to depart. (860) Defendant asserted five separate grounds for departure: (1) a physical injury sustained while in prison; (2) his agreement to be deported; (3) his criminal history constituted aberrant behavior; (4) his criminal history was overstated; and (5) the totality of the circumstances. A review of the sentencing hearing memo and transcript convinced the First Circuit that the district court fully comprehended its authority to depart downward in appropriate cases, but denied defendant’s motion because of its perceived lack of merit. Because defendant challenged the district court’s exercise of discretion not to depart downward, the appellate court lacked jurisdiction to entertain the argument. U.S. v. Cadavid, 192 F.3d 230 (1st Cir. 1999).
1st Circuit upholds life sentence for killing during carjacking. (860) Defendant committed a carjacking in which he shot and killed the driver of the car. At sentencing, he moved for a downward departure under note 1 to § 2A1.1. The district court held that the driver had been killed under circumstances that constituted murder under 18 U.S.C. § 1111, and therefore, §§ 2B3.1 & 2A1.1 set a base offense level of 43, requiring life imprisonment. The First Circuit held that the district court did not err in ruling that defendant had committed felony murder. The district court’s refusal to depart downward under note 1 to USSG § 2A1.1 was not reviewable. U.S. v. Serrano-Osorio, 191 F.3d 12 (1st Cir. 1999).
1st Circuit says court exercised discretion not to depart. (860) Defendant argued that the district court incorrectly believed that defendant’s status as a deportable alien was not a valid basis for departure. Noting that this is still an undecided question in the First Circuit, the appellate court still refused to consider the matter, since the trial judge also explained that even if he did have the power to depart, he could not find facts sufficient to justify such a departure. This finding is clearly a discretionary refusal to depart which is not reviewable on appeal. U.S. v. DeLeon, 187 F.3d 60 (1st Cir. 1999).
1st Circuit has no jurisdiction to review refusal to depart. (860) Defendant requested a downward departure under note 11 to § 2F1.1, which authorizes a departure where the loss overstates the seriousness of the offense. The district court denied the request, stating “For all the reasons I gave in determining the appropriate loss in this case, I simply do no see where this is one of those instances which the note says that the loss overstates the seriousness of the offense.” Generally, a criminal defendant cannot ground an appeal on a sentencing court’s discretionary decision not to depart below the guidelines sentencing range. The First Circuit held that it lacked jurisdiction to review the court’s refusal to depart, since the sentencing court fully comprehended its authority to depart in an appropriate case, but denied defendant’s motion because of its perceived lack of merit. U.S. v. Robbio, 186 F.3d 37 (1st Cir. 1999).
1st Circuit says defendant’s loss argument was attempt to challenge refusal to depart. (860) Defendant was convicted of fraud based on five wire transfers made to pay liens on property he owned. He argued that the court should have excluded from its loss calculation $16.5 million that co-conspirator Christopher diverted from an insurance company’s bank account because in Christopher’s case, the government argued that Christopher alone was responsible for that loss. The First Circuit refused to review the matter since defendant was attempting to recast a challenge to the district court’s refusal to depart as an attack on the court’s loss calculation. Loss caused by factors extraneous to defendant’s conduct are not deducted from total loss. Instead, note 10 says that a downward departure may be warranted where the total dollar loss overstates the seriousness of defendant’s conduct, which “typically occur[s]” when defendant’s fraud “is not the sole cause of the loss.” The district court refused to depart based on defendant’s argument that the loss overstated the seriousness of his offense. The refusal to depart was not reviewable. U.S. v. Reeder, 170 F.3d 93 (1st Cir. 1999).
1st Circuit upholds refusal to depart based on government’s use of reverse sting. (860) Defendant was arrested in a reverse sting operation, where the government, rather than the target, provides the controlled substance. Defendant argued that the government’s reverse sting was so unusual or so clearly devised and controlled by the government as to constitute a mitigating factor that merited a downward departure. The First Circuit held that it lacked jurisdiction to review the district court’s discretionary decision not to depart based on the government’s use of a reverse sting. The district court correctly understood the legal standards governing departures. The court found that there were no features of defendant’s case that distinguished it from the heartland of cases contemplated by the guidelines. Sting operations are commonly used, and the Sentencing Commission knew about them when it promulgated the guidelines. U.S. v. Portela, 167 F.3d 687 (1st Cir. 1999).
1st Circuit has no jurisdiction if refusal to depart was based on facts, rather than law. (860) Defendant, a partner in a prostitution business, was herself a prostitute. She was convicted of transporting minors across state lines for prostitution purposes. She challenged the district court’s decision not to depart downward under § 5K2.13 (Diminished Capacity) and § 5K2.12 (Coercion and Duress). The First Circuit refused to review either claim. The court clearly lacked jurisdiction to review the diminished capacity claim. The judge based her decision on the results of a psychiatric evaluation, which she found did not demonstrate enough diminished capacity for a downward departure. The refusal to depart based on coercion and duress was more complicated. If the judge believed that a single past act of physical violence was insufficient as a matter of law to support a coercion/duress departure, the appellate court could review this legal determination. However, this did not appear to be the case. The judge did not imply that the past violence was legally insufficient for a departure. Instead, she found no evidence of the coercive effect of that violence during what she considered to be the relevant time period. The judge’s decision rested on the evidence’s lack of persuasive effect and did not encompass any legal error. U.S. v. Anderson, 139 F.3d 291 (1st Cir. 1998).
1st Circuit affirms where no evidence government delayed prosecution to avoid concurrent sentences. (860) Defendant pled guilty to several counts involving counterfeit corporate checks. He committed the offense while awaiting sentencing on a 1992 federal conviction involving counterfeit checks and stolen credit cards. Defendant requested a downward departure on the ground that he was ineligible for concurrent federal sentences under § 5G1.3 because the 1992 sentence had been discharged by the time he was indicted in the instant case. He claimed the government purposely delayed the indictment until after he served the prior sentence in order to circumvent § 5G1.3(c). He also contended that in 1992 the government improperly failed to inform the district court of the instant offenses so that the sentencing judge could consider them as relevant conduct. The First Circuit found it had no jurisdiction because the district court did not misunderstand its authority to depart. The court made no remark that could be construed to indicate that it thought it lacked the authority to depart. There was no evidence that the government improperly delayed indicting defendant until he served his 1992 sentence. Finally, defendant did not provide any authority requiring the government at the 1992 hearing to call the instant conduct to the attention of the sentencing court. The government apparently did not reveal the conduct because it was still investigating the offense. U.S. v. Rizzo, 121 F.3d 794 (1st Cir. 1997).
1st Circuit does not review where court decided it would not depart even if it had such discretion. (860) Defendant argued that he was in need of drug treatment and that the guidelines authorized a downward departure based on a likelihood of rehabilitation to permit him to enter a residential Bureau of Prisons drug treatment program that is only open to those within 36 months of release. The First Circuit did not resolve this issue since the district court decided that in light of defendant’s circumstances, it would not exercise any discretion it might have to depart downward. Defendant had twice before failed to complete drug rehabilitation programs. The court did recommend to the Bureau of Prisons that defendant be admitted to an alternative 600-hour drug rehabilitation program while in prison. U.S. v. Brimage, 115 F.3d 73 (1st Cir. 1997).
1st Circuit emphasizes that cases where it cannot review failure to depart are limited. (860) Defendant argued that the district court misunderstood its authority to depart downward. The government argued that the court lacked jurisdiction to review the claim. The First Circuit, noting that such jurisdiction arguments have become a “recurring distraction,” spelled out in detail the situations in which it has jurisdiction to review a failure to depart. Where a defendant colorably claims that a refusal to depart rests upon a legal error—and so alleges that the sentence was imposed in violation of law or by an incorrect application of the guidelines—the government should focus on the question of whether a legal error has occurred. The government’s jurisdictional argument is proper where the defendant’s only claim on appeal is that the district court understood its authority to depart, but its abused its discretion in declining to depart. The abuse of discretion claim is not subject to review. U.S. v. Saldana, 109 F.3d 100 (1st Cir. 1997).
1st Circuit finds court understood discretion to depart for diminished mental capacity. (860) Defendant argued that he should have been given a downward departure for diminished mental capacity. The First Circuit found it lacked jurisdiction over this claim. The court did not mistakenly equate the concept of competency to stand trial with the concept of reduced mental capacity at the time of the offense. The court understood it had the capacity to depart downward if it found that defendant suffered from a reduced mental capacity at the time he committed the offense of conviction. The court specifically found that defendant committed the crimes while in a “very lucid” phase, and that his criminal behavior was not the result of a diminished capacity. U.S. v. Robles-Torres, 109 F.3d 83 (1st Cir. 1997).
1st Circuit has no jurisdiction to review refusal to depart for multiple causes of loss. (860) Defendant fraudulently obtained a real estate loan by misrepresenting the purchase price of a property he was purchasing. He argued that the bank’s $2.2 million loss had more to do with the economic climate in which the bank later sold the property than with his conduct. The First Circuit refused to review the matter since defendant was challenging the court’s refusal to depart downward. The loss table in § 2F1.1 presumes that the defendant alone is responsible for the entire amount of the victim loss determined by the court. The commentary states that a sentencing court may depart downward where it finds the loss was caused by factors in addition to the defendant’s conduct. An appellate court lacks jurisdiction to review a sentencing court’s discretionary decision not to depart downward. U.S. v. D’Andrea, 107 F.3d 949 (1st Cir. 1997).
1st Circuit upholds refusal to depart for reduced mental capacity. (860) Defendant was involved in a carjacking in which a co‑conspirator shot and killed the driver. Defendant relied on a 1984 diagnosis of borderline mental retardation and paranoid schizophrenia to request a downward departure under § 5K2.13 (Diminished Capacity). Such a departure is available only if the offense is a “non‑violent offense.” Defendant argued that in denying the departure the court misinterpreted the phrase “non‑violent offense.” The First Circuit held that it lacked jurisdiction to review the claim. The district court did not base its refusal to depart on its interpretation of non-violent offense, but on its determination that defendant did not suffer from the required “significantly reduced mental capacity” at the time of the 1994 carjacking. Defendant did not contend that the court misunderstood the criteria for determining whether he suffered from a “significantly reduced mental capacity.” U.S. v. Nunez‑Rodriguez, 92 F.3d 14 (1st Cir. 1996).
1st Circuit rules judge was aware of authority to depart. (860) Defendant challenged the district court’s failure to depart downward, claiming the court misunderstood the rules governing departure. The First Circuit disagreed, finding the judge was well aware of the applicable case law, believed he had the authority to depart downward, and declined to do so after weighing the arguments presented. The decision was therefore not reviewable. U.S. v. Boots, 80 F.3d 580 (1st Cir. 1996), overruling on other grounds recognized by U.S. v. Richardson, 421 F.3d 17 (1st Cir. 2005).
1st Circuit reviews refusal to depart where court used wrong standard for eligibility for departure. (860) Defendant argued that his crime was an act of aberrant behavior, justifying a downward departure. The district court agreed that aberrant behavior can justify a departure but refused to depart, finding defendant’s conduct did not fall within the definition of aberrant behavior. The First Circuit held that it had jurisdiction to review the refusal to depart because the district court used the wrong definition of aberrant behavior. In contrast, the court understood its authority to depart based on extraordinary circumstances such as unusual family obligations and exceptional charitable activities. The court found that defendant’s circumstances were not sufficiently unusual, and this exercise of discretion was not reviewable. U.S. v. Grandmaison, 77 F.3d 555 (1st Cir. 1996), superseded on other grounds by guideline as stated in U.S. v. Mikutowicz, 365 F.3d 65 (1st Cir. 2004).
1st Circuit says it cannot review judge’s refusal to depart. (860) Defendant was convicted of bank fraud. He argued that the district court should have departed downward on the basis of multiple loss causation. The First Circuit held that it could not review the discretionary refusal to depart. The judge acknowledged that multiple loss causation could constitute a legally cognizable basis for a downward departure in some cases, but decided that no departure was justified on the facts of this case. This is precisely the sort of discretionary, fact-specific, departure-declining determination that appellate courts lack the power to review. U.S. v. Ottens, 74 F.3d 357 (1st Cir. 1996).
1st Circuit says agent’s agreement to reduce down payment for drugs was not sentencing manipulation. (860) An undercover agent offered to sell defendants 10 kilograms of cocaine. Although defendants originally agreed to pay a $50,000 down payment, several months later, they pled a shortage of cash, and the agent reduced the down payment to a $5,000 advance for expenses and a $20,000 initial payment on delivery. Defendants argued that the government engaged in sentencing manipulation. The government argued that the appellate court lacked jurisdiction because defendants’ claim was that the district court should have departed downward. The First Circuit upheld its jurisdiction over the claim, but nonetheless rejected it on the merits. Where government agents have improperly enlarged the scope of the crime, the sentencing court has the power to either exclude the tainted transaction from the computation of relevant conduct or depart from the guidelines. Thus, the decision is reviewable. However, the reduction of the down payment here did not amount to sentencing manipulation. The case involved a single transaction, not a string of crimes prolonged by the government; the price was within the market range; and defendants were well-established drug dealers. Sentencing manipulation claims are limited to “extreme and unusual cases,” and “garden variety manipulation claims are largely a waste of time.” U.S. v. Montoya, 62 F.3d 1 (1st Cir. 1995).
1st Circuit finds judge understood authority to impose concurrent sentences. (860) Defendant was convicted of RICO and money laundering charges. His total offense level was 45, which required a life sentence regardless of the offender’s criminal history. Since the offenses of conviction all carried maximum sentences of less than life, the district court imposed consecutive sentences under § 5G1.2 to reach a sentence of 660 months. Defendant argued that the district court erroneously believed that it lacked discretion to impose concurrent sentences. The First Circuit found that the district court correctly understood that it could only impose concurrent sentences if the case satisfied conditions for a downward departure. Since no such factors existed, the court refused to depart. A district court’s discretionary refusal to depart is not appealable. U.S. v. Saccoccia, 58 F.3d 754 (1st Cir. 1995).
1st Circuit holds that court exercised discretion in refusing to depart under § 5K2.11. (860) Defendant was convicted of being a felon in possession after he was involved in a shootout on a street corner. He claimed that he merely picked up the gun after one of the shooters “lost control” of the weapon. Defendant requested a § 5K2.11 departure because he committed the offense in order to avoid a perceived greater harm—injury to himself or others. The Second Circuit affirmed the denial of the departure, finding the district court was aware of its authority to depart. The district court’s refusal to depart was based on its belief that defendant possessed the gun before the shootout. This negated defendant’s claim that his possession was prompted by the need to protect himself. U.S. v. Powell, 50 F.3d 94 (1st Cir. 1995).
1st Circuit says court’s statement did not show belief that it lacked authority to depart. (860) Defendant argued that he was an atypical career offender because several of his offenses were symptoms of a “downward spiral” in his life manifested by heavy drinking and suicidal thoughts. The district court refused to depart downward, but stated that it would depart if it felt it had authority to depart. The Second Circuit declined to review the matter, concluding that the court was aware of its authority to depart, but found that the facts of the case did not warrant a departure. The court’s statement, viewed in context, was a “generalized expression of apprehension” regarding the guidelines. The court made repeated references to U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993), which indicated that it was aware of its authority to depart. Also, the government never argued that the court had no authority to depart. The court’s statement was in response to the government’s claim that the facts of the case did not provide a basis for exercising its authority. Finally, the court also stated “I do not believe that I have the authority on the facts of this case to depart.” U.S. v. Morrison, 46 F.3d 127 (1st Cir. 1995).
1st Circuit says there is no automatic right to present live testimony at sentencing. (860) Before sentencing, defendant requested a downward departure based on his need to care for a 12-year old son suffering from a neurological condition. Defendant had already submitted written information about the son’s condition, but sought a postponement to offer live medical testimony claimed to be more specific. The court refused, but offered to accept a proffer of what the absent expert’s medical testimony would be. The proffer was made, but it did not alter the court’s refusal to depart downward. The Second Circuit held that the court’s refusal to hear live testimony was not an abuse of discretion, since there is no automatic right to present live testimony at sentencing. The court’s decision to test the value of the proposed live testimony by a proffer made good sense. U.S. v. Claudio, 44 F.3d 10 (1st Cir. 1995).
1st Circuit finds court exercised discretion not to depart downward. (860) Defendant argued that the court’s decision not to depart downward resulted from its belief that it lacked authority to depart. The 1st Circuit disagreed, finding that the court clearly refused to exercise its discretion to depart downward. Therefore, the appellate court lacked jurisdiction to review the argument. In addition, defendant’s failure to request a downward departure based on diminished capacity precluded the appellate court from reviewing the matter. U.S. v. Field, 39 F.3d 15 (1st Cir. 1994).
1st Circuit finds court was aware of ability to depart despite statement that it lacked discretion to impose probation. (860) Defendant argued that the district court mistakenly believed that it lacked authority to depart based on his limited intelligence, his family and employment situation, his cooperation, his acceptance of responsibility and the lack of danger he posed to others. The 1st Circuit held that the court was aware of its authority, despite its statement that it had no discretion to give a probationary sentence. Other comments made it clear that the judge meant only that the case was not sufficiently extraordinary to justify a departure. In some cases, it is unclear what a district court means when it says that it “cannot” or “lacks power” to depart. To avoid future confusion, a district court should state, where applicable, that it has considered the mitigating factors urged but does not find them sufficiently unusual to warrant a departure. U.S. v. DeCosta, 37 F.3d 5 (1st Cir. 1994).
1st Circuit says court was aware it could depart but found defendant’s family situation not exceptional. (860) Defendant argued that the district court erroneously believed that it was precluded from departing based on his extraordinary family circumstances. The 1st Circuit disagreed, finding that the court simply concluded that defendant’s circumstances were not extraordinary. The judge stated that the facts of the case were not “so different from what I see in 90 percent of the cases.” The judge did not say that the guidelines prohibited him from considering the blood disease of defendant’s son, but that he considered the disease and it was not enough for him to depart. U.S. v. Romero, 32 F.3d 641 (1st Cir. 1994).
1st Circuit upholds jurisdiction to review whether court could legally depart downward. (860) Defendant challenged the district court’s failure to depart downward. The 1st Circuit upheld its jurisdiction to review the district court’s finding that none of the cited circumstances constituted a permissible basis for a downward departure. If a judge says to a defendant, in effect, that “the circumstance of which you speak, even if it exists, does not constitute a legally sufficient basis for departure,” then the correctness of that legal determination may be tested on appeal. However, if the judge says to a defendant, in effect, either that “this circumstance of which you speak has not been shown to exist in this case,” or, alternatively, that “while this circumstance of which you speak might exist and might constitute a legally cognizable basis for a departure in a theoretical sense, it does not render this particular case sufficiently unusual to warrant departing,” then no appeal lies. This case presented the former situation. U.S. v. Pierro, 32 F.3d 611 (1st Cir. 1994).
1st Circuit holds defendant waived challenge to use of uncharged conduct to determine loss. (860) Defendant’s revised presentence report increased the loss under § 2F1.1 by the losses caused by defendant’s uncharged conduct. At sentencing, defense counsel told the court that defendant had no objections to the presentence report. The 1st Circuit held that defendant waived his objection to the court’s consideration of his uncharged conduct. It also held that it lacked jurisdiction to review the district court’s refusal to depart downward under note 10 to § 2F1.1. The district court made it “abundantly clear” during the sentencing hearing that it was aware of its power to depart downward based on the amount of loss, but would not do so. U.S. v. O’Connor, 28 F.3d 218 (1st Cir. 1994).
1st Circuit says claim of refusal to depart downward may not be raised for the first time on appeal. (860) Defendant argued that the district court should have departed downward due to her family circumstances. The 1st Circuit found no exception to the rule that a sentencing judge’s informed decision not to depart, regardless of the direction, is a non-appealable issue. Moreover, defendant failed to seek a departure in the district court and thus, could not raise the matter for the first time on appeal. U.S. v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993).
1st Circuit rules it has jurisdiction to review extent of Rule 35(b) sentence reduction. )(860) The 1st Circuit held that it had jurisdiction to hear an appeal of a district court’s ruling on a motion under Fed. R. Crim. P. 35(b). The analogy to substantial assistance departures fails, because there is a jurisdictionally significant difference between downward departures and sentence reductions. A defendant ordinarily cannot appeal a refusal to depart downward because only sentences that meet the criteria of 18 U.S.C. section 3742 are appealable. However, the appealability of an order resolving a Rule 35(b) motion is not controlled by section 3742 because such an order is not a sentence. Rather appealability is governed by 28 U.S.C. section 1291, which governs virtually all post-judgment motions. U.S. v. McAndrews, 12 F.3d 273 (1st Cir. 1993).
1st Circuit says it cannot review extent of downward departure. (860) Defendant argued that the district court should have departed downward by more than just three years. The 1st Circuit upheld the sentence, since a defendant does not have the right to appeal the extent of a downward departure. The district court did not misunderstand the guidelines. Contrary to defendant’s suggestion, the court did not attempt to equalize sentences among co-defendants. U.S. v. Soltero-Lopez, 11 F.3d 18 (1st Cir. 1993).
1st Circuit does not require explanation for failure to depart downward. (860) Defendant challenged the district court’s failure to depart downward based on his age, physical ailments and mental health problems. He argued that the court must have believed it lacked discretion to depart downward. The 1st Circuit found no evidence that the district court doubted its authority. Departures on the grounds asserted are comparatively rare, as stated in sections 5H1.1 and 5H1.4. In the ordinary case no explanation for declining to do so is required. U.S. v. Lombardi, 5 F.3d 568 (1st Cir. 1993), superseded on other grounds by statute as stated in U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004).
1st Circuit refuses to review extent of downward departure. (860) Defendant argued that his sentence was excessive in light of the amount of time given to his co-conspirator. The 1st Circuit refused to consider the argument. In sentencing defendant, the district court departed downward from the applicable guideline range. The appellate court lacked jurisdiction to review the extent of a downward departure merely because the defendant is dissatisfied with the court’s generosity. U.S. v. Fisher, 3 F.3d 456 (1st Cir. 1993).
1st Circuit has no jurisdiction to review refusal to depart downward. (860) The 1st Circuit found that it was without jurisdiction to consider defendant’s claim that the district court should have departed below his guideline sentence. Since the district court was fully aware of its authority to depart, the refusal to depart was not reviewable. U.S. v. Hernandez, 995 F.2d 307 (1st Cir. 1993).
1st Circuit refuses to review sentence within guideline range despite departure for co-defendant. (860) Defendant contended that the district court abused its discretion in sentencing him to the high end of his guideline range while departing downward in sentencing his co-defendant. The 1st Circuit held that it lacked jurisdiction to review the sentence since it was within the applicable guideline range. U.S. v. Brennan, 994 F.2d 918 (1st Cir. 1993).
1st Circuit upholds power to review whether court misunderstood authority to depart under 5K1.1 (860) Defendants argued that the district court confused the legal standard governing departures under section 5K1.1 with the legal standard governing departures under section 5K2.0. Since this presented a question of law, not of fact, the 1st Circuit held that it had jurisdiction to review the question. U.S. v. Mariano, 983 F.2d 1150 (1st Cir. 1993).
1st Circuit upholds its jurisdiction to review whether government breached plea agreement. (860) Defendant argued that the government breached the terms of his plea agreement when it failed to advise the sentencing court of the nature and extent of his cooperation. Had the government done so, the sentencing court might have departed downward. The 1st Circuit upheld its jurisdiction to consider this issue. This was not an appeal of a district court’s failure to depart, but rather a claim that the government breached a material term of defendant’s plea agreement. An appellate court has jurisdiction, on direct review, to consider an appeal that seeks to determine whether the government satisfactorily complied with the terms of a plea bargain. U.S. v. Atwood, 963 F.2d 476 (1st Cir. 1992).
1st Circuit rejects further downward departure for single mother of three children. (860) The district court granted the government’s motion for a downward departure under section 5K1.1 based on defendant’s substantial assistance, and denied defendant’s request for a downward departure based upon her family responsibilities as a single mother of small children. Notwithstanding guideline section 5H1.6, defendant argued that the district court could consider her status as a single parent in determining the extent of the departure. According to defendant, once the government moved for departure under section 5K1.1, it opened the door for the court to consider factors unrelated to her assistance to the government in determining the extent of the departure, even if those factors were listed elsewhere as irrelevant in determining the appropriateness of a departure. The 1st Circuit held that even if a court could base the extent of a departure under section 5K1.1 on factors not listed in section 5K1.1, any additional non-listed factors would have to relate to the defendant’s substantial assistance to authorities. Moreover, defendant’s status as a single mother of three young children was not an unusual family circumstance. The sentencing commission was aware that some convicted felons are single parents of small children. U.S. v. Chestna, 962 F.2d 103 (1st Cir. 1992).
1st Circuit refuses to review sentence at top of applicable guideline range. (860) The 1st Circuit refused to review defendant’s claim that the district court erroneously sentenced him to the maximum sentence under his applicable guideline range. An appellate court lacks jurisdiction to review a sentence within the applicable guideline range. U.S. v. Aubin, 961 F.2d 980 (1st Cir. 1992).
1st Circuit refuses to review district court’s refusal to depart based on duress. (860) The 7th Circuit held that it lacked jurisdiction to review the district court’s refusal to depart under section 5K2.12 based upon defendant’s duress. The court agreed with defendant that the jury’s rejection of a duress defense did not preclude a downward departure under section 5K2.12. The type and kind of evidence necessary to support a downward departure premised on duress is somewhat less than that necessary to support a duress defense at trial. However, defendant did not contend that the judge was unaware of his ability to depart or misunderstood the legal standard. Instead, defendant seemed to be arguing that the judge’s refusal to depart was wrong. However, an appellate court lacks jurisdiction to review a district court’s discretionary decision not to depart. U.S. v. Amparo, 961 F.2d 288 (1st Cir. 1992).
1st Circuit refuses to review claim that court vindictively sentenced defendant at top of range. (860) Defendant asserted that the district court improperly sentenced him in the upper part of the guideline range, while his co-conspirator, who had a larger role in the conspiracy, received a sentence in the middle of the range. Defendant contended that the trial court improperly treated him more harshly because he chose to stand trial while his co-conspirator pled guilty. The 1st Circuit refused to review the issue, finding it had no jurisdiction to review a sentence within the proper guideline range. U.S. v. Panet-Collazo, 960 F.2d 256 (1st Cir. 1992).
1st Circuit rules it lacks jurisdiction to review fine within guideline range. (860) In defendant’s first appeal, the 1st Circuit remanded because the district court improperly imposed a four level leadership enhancement. On remand, the district court reduced defendant’s offense level accordingly, and imposed a reduced term of imprisonment and the same $150,000 fine as before. On defendant’s second appeal, he claimed that the fine was excessive in light of the fact that he was not found to have a leadership role in the offense. The 1st Circuit held that because the fine was within the appropriate guideline range, it had no jurisdiction to review the appropriateness of the fine. U.S. v. McDowell, 957 F.2d 36 (1st Cir. 1992).
1st Circuit upholds its jurisdiction to review whether district court had discretion to depart on grounds urged by defendant. (860) The 1st Circuit upheld its ability to review the district court’s failure to depart downward where it appeared that the court was aware of its ability to depart, but believed that it lacked discretion to depart on the particular ground urged by defendant. U.S. v. Butt, 955 F.2d 77 (1st Cir. 1992).
1st Circuit rules court was aware it could depart based on physical condition, employment and family ties. (860) Defendant contended that the district court wrongly concluded that it lacked authority to depart downward based upon her physical condition, employment record, and family ties. The 1st Circuit concluded after reviewing the full record that the district court was aware of its ability to depart downward, but had concluded regretfully that the specific provisions of the guidelines that defendant wished to invoke simply did not permit departure under the circumstances of her case. The presentence report specifically discussed and rejected physical condition, employment record and family ties as factors that might warrant departure in defendant’s case. The factors were again discussed in defendant’s memorandum in objection to the presentence report, and were presented orally to the district court at the sentencing. U.S. v. DiIorio, 948 F.2d 1 (1st Cir. 1991).
1st Circuit rules district court knew it had discretion to depart downward. (860) The 1st Circuit rejected defendant’s claim that the district court failed to depart downward based on the mistaken belief that it lacked discretion to depart. The district court’s statement did not suggest that it had no sentencing discretion under the guidelines, only that it had very limited discretion. Moreover, after considering defendant’s request for a downward departure, the court stated that “I don’t think that this is a case where I can depart because I do think that the Guidelines have taken into [consideration] what’s here, and I’m satisfied that the — this matter is correctly computed.” Therefore, it was clear that the district court knew it could depart but found that circumstances did not justify a departure. The refusal to depart is not reviewable on appeal. U.S. v. Isabel, 945 F.2d 1193 (1st Cir. 1991).
1st Circuit rules it has no jurisdiction to review refusal to depart downward. (860) Defendant contended that the district court erroneously refused to consider her reduced culpability as a proper basis for a downward departure under the guidelines. The 1st Circuit found it had no jurisdiction to review the claim. The district court granted defendant a four-level reduction for being a minimal participant under guideline section 3B1.2(a). The court recognized, however, that only “extraordinary, exceptional circumstances” justified a downward departure, and then found that such circumstances were not present here. As the district court was aware of its power to depart in extraordinary circumstances but decided a departure was unwarranted, the appellate court was without jurisdiction to review the downward departure. U.S. v. Lopez, 944 F.2d 33 (1st Cir. 1991).
1st Circuit refuses to review failure to depart downward based on defendant’s military service. (860) Defendant contended that he was entitled to a downward departure on the basis of his military service record in the Marine Corps. The district court had chosen a sentence at the lower end of the guideline range based on his military service, but found that it was not a mitigating circumstance sufficient to justify a departure. The 1st Circuit found that it was without jurisdiction to review the failure to depart under these circumstances. U.S. v. Marino, 936 F.2d 23 (1st Cir. 1991).
1st Circuit refuses to review failure to depart downward. (860) Defendant argued that the judge, when sentencing him, should have departed downward in order to reflect that defendant had suffered a pre-trial confinement under unconstitutional conditions. The 1st Circuit refused to review the district court’s actions, finding no extraordinary circumstances to justify it. U.S. v. Porter, 924 F.2d 395 (1st Cir. 1991).
1st Circuit reaffirms that it lacks jurisdiction to review extent of downward departure. (860) On the government’s recommendation, the district court departed downward from the 10 year statutory minimum and sentenced defendant to 60 months imprisonment. The 1st Circuit refused to review defendant’s complaint that the extent of the departure was “too stingy” given his minimal participation in the offense. “[W]e 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.” U.S. v. Pomerleau, 923 F.2d 5 (1st Cir. 1991).
1st Circuit rejects claim that sentence was excessive. (860) Defendant argued that the sentence he received was excessive. The 1st Circuit rejected this claim. Defendant conceded that the sentencing guidelines applied, that the sentencing court correctly applied the guidelines to impose a sentence with the guideline range, and that his sentence was not otherwise imposed in violation of law. Essentially, defendant was complaining about the district court’s refusal to depart downward, which is not appealable. U.S. v. Martinez, 922 F.2d 914 (1st Cir. 1991).
1st Circuit refuses to review refusal to depart downward. (860) Defendant argued that the district court erred in refusing to depart below the guideline range in light of his diminished capacity, duress and substantial assistance to the government. The 1st Circuit held that a defendant cannot appeal a discretionary decision not to depart downward, and therefore it lacked jurisdiction to consider the claim. U.S. v. Harotunian, 920 F.2d 1040 (1st Cir. 1990).
1st Circuit reaffirms it has no jurisdiction to review district court’s failure to depart downward. (860) Defendants contended that the 10-year gap since their last criminal convictions suggested that their current crime represented an “aberration,” and therefore the district court should have departed downward. Noting that it was without appellate jurisdiction to consider this claim, the 1st Circuit dismissed the claim without discussion. U.S. v. Sanchez, 917 F.2d 607 (1st Cir. 1990).
1st Circuit finds that district court knew it could depart downward. (860) Defendant argued that his sentence should be set aside because the district court was unaware that the sentencing guidelines permit downward departure. At the sentencing hearing, defense counsel requested “a downward departure, as the Court is entitled to do . . .” Defense counsel and the sentencing judge then proceeded to discuss the issue, after which the judge stated that he would determine the requirements of the sentencing guidelines “mechanics” before determining the level of discretion available. The 1st Circuit found this sufficient evidence to determine that the district court was aware of its ability to depart downward. U.S. v. Castiello, 915 F.2d 1 (1st Cir. 1990).
1st Circuit reaffirms that it has no jurisdiction to review failure to depart downward. (860) The 1st Circuit refused to consider defendant’s contention that the district court erred in declining to make a downward departure. Although defendant contended that he had been of substantial assistance to the government, the district court was without power to depart downward on this basis in the absence of a motion from the government. U.S. v. Ocasio, 914 F.2d 330 (1st Cir. 1990).
1st Circuit holds defendants cannot appeal downward departures from sentencing guidelines. (860) Although the district court departed downward, defendant appealed, contending he was not given enough credit by the sentencing court for cooperation with authorities. The 1st Circuit dismissed his appeal, holding that it lacked appellate jurisdiction to hear challenges by defendants to downward departures. “[T]he extent of a departure, like the decision to depart itself, is essentially discretionary . . . and the statute affords no grounds for the beneficiary of a departure decision to complain that the deviation should have been greater.” U.S. v. Pighetti, 898 F.2d 3 (1st Cir. 1990).
1st Circuit holds there is no appeal from a decision not to depart from the guidelines. (860) The 1st Circuit ruled that if a district court declines to depart from the guidelines, that decision is not appealable. A refusal to depart cannot be considered a “violation of law” or an “incorrect application” of the guidelines and therefore there is no appellate jurisdiction under 18 U.S.C. § 3742. U.S. v. Tucker, 892 F.2d 8 (1st Cir. 1989).
1st Circuit rules appeal from failure to grant departure is frivolous when no credible grounds are asserted. (860) Defendant argued that the district court erroneously declined to depart from the appropriate guidelines range. The 1st Circuit found the argument to be frivolous inasmuch as defendant failed to assert any credible reason why departure would have been warranted. U.S. v. Ruiz-Garcia, 886 F.2d 474 (1st Cir. 1989).
2nd Circuit says sentence disparity from fast-track programs did not make sentence unreasonable. (860) Defendant was convicted of entering the U.S. after being deported following a conviction for an aggravated felony. At sentencing, he requested a below-guideline sentence based on the unwarranted sentencing disparities caused by the existence of fast-track programs in some districts but not others. In U.S. v. Mejia, 461 F.3d 158 (2d Cir. 2006), the Second Circuit held that sentencing disparities created by the fact that some, but not all, districts use fast-track programs did not render the sentences in non-fast-track districts necessarily unreasonable. Here, the Second Circuit confirmed that he absence of a fast-track program did not require the court to adjust the sentence. The judge said that he did not find the fast-track arguments “to be persuasive”—he did not say that they were foreclosed by Mejia. As a result, the sentencing decision was an unreviewable exercise of the judge’s discretion not to depart from the guidelines. There was no error. U.S. v. Hendry, 522 F.3d 239 (2d Cir. 2008).
2nd Circuit says refusal to depart not reviewable where court adequately considered departure. (860) Defendant was convicted of exporting weapons and other defense articles from the United States to the Philippines, in violation of the Arms Export Control Act (AECA). Note 1 to § 2M5.2 provides that the base offense level “assumes that the offense conduct was harmful or had the potential to be harmful to a security or foreign policy interest of the United States. In the unusual case where the offense conduct posed no such risk, a downward departure may be warranted.” Defendant contended that he was entitled to a downward departure because his conduct was beneficial in that he was selling weapons to anti-terrorist groups in the Philippines and not to insurgents. The Second Circuit held that the district court understood its authority to depart, and chose not to, and therefore the refusal to depart was not reviewable. The court stated initially that it rejected defendant’s request because “the policy is reflected in the statute,” but it then went on to consider the degree to which “violation threatened a security or foreign policy interest of the United States,” as required by Application Note 2 before downwardly departing. The district court adequately considered the relevant factors under the application note, and thus, the refusal to depart was not reviewable. U.S. v. Sero, 520 F.3d 187 (2d Cir. 2008).
2nd Circuit upholds refusal to depart based on alleged sentencing disparity. (860) In rejecting defendant’s request for a downward departure based on sentencing disparity, the district court stated “I don’t read the Tejado case as indicating that I have no authority to depart. Clearly I could depart.” Further, “even though the Court has the power to depart, based upon disparity, and other factors, or disparity unto itself, if it’s really extraordinary, I don’t think it’s appropriate in this case.” Because a district court’s exercise of its assumed discretion to deny a departure is not appealable, the Second Circuit dismissed defendant’s appeal for lack of jurisdiction. However, it noted that the district court erred insofar as its stated it had the authority to depart based on differences between the sentences applicable to defendant and his co-defendant, given that the disparity resulted from the plea bargaining process and was not unconstitutional. The lack of authority to depart in such a circumstances is well established. Thus, even if the court had denied defendant’s motion for a downward departure based on a sentencing on the ground that it had no authority to grant such a motion, the panel would still have affirmed. U.S. v. Mitchell, 358 F.3d 216 (2d Cir. 2004).
2nd Circuit refuses to rely on sentence fragment as evidence that court was unaware of authority to depart. (860) Defendant argued that the court erred in refusing to grant him a downward departure. Although defendant argued that the court may have mistakenly believed he had no authority to depart, the Second Circuit found no support in the record for this contention. The record as a whole plainly showed that the court was refusing to depart as an exercise of its discretion, and the sentence fragment on which defendant relied was entirely unpersuasive in light of the fact that the judge’s statement was interrupted by defendant’s attorney. U.S. v. Perez, 325 F.3d 115 (2d Cir. 2003).
2nd Circuit cannot review refusal to depart where court was aware of discretion. (860) Defendant challenged the district court’s exercise of discretion to deny a downward departure from the guidelines to accommodate defendant’s extraordinary family responsibilities. The court expressly declared, “I recognize that I have the authority to depart downward.” After reviewing the circuit’s caselaw on downward departures for extraordinary family responsibilities, the district court declined to exercise its discretion. Because the court was aware of its authority to depart, the Second Circuit found its refusal to depart was not reviewable on appeal. U.S. v. Burgos, 324 F.3d 88 (2d Cir. 2003).
2nd Circuit dismisses appeal where court understood its discretion to depart. (860) Defendant requested a downward departure based on his conditions of confinement for the two years he was imprisoned pending sentencing. He alleged that he received neither medication for his back pain nor food suitable for his vegetarian diet. The district court refused to depart, concluding “I don’t think that the conditions of confinement were as harsh as it has been represented” and “I don’t think they are so harsh to support a downward departure.” Since the district court understood that it had the discretion to depart downward but chose not to do so, the Second Circuit dismissed defendant’s appeal. U.S. v. Rosse, 320 F.3d 170 (2d Cir. 2003).
2nd Circuit holds that court was aware of authority to depart. (860) Defendant was convicted of attempted aggravated sexual abuse. He argued for a downward departure on the grounds that the nature of the offense, and his arguable abandonment of the assault, placed his crime among the least serious of the wide range of assaults covered by the applicable guideline. In rejecting the departure, the court noted “Congress and the sentencing guidelines in their wisdom have decided that the attempt and the crime itself are equal. I must follow what they say.” The judge also stated that “under the Koon [] case I agree that I have a right to downwardly depart if [the offense] is outside of the heartland.” This Court declines to downwardly depart. It is my discretion, and I decline.” The Second Circuit found no contradiction in these statements, ruling that the judge was aware of his authority to depart and simply declined to do so. Therefore, the court’s refusal to depart was not reviewable. U.S. v. Crowley, 318 F.3d 401 (2d Cir. 2003).
2nd Circuit says court properly refused to depart based on illegal activities of robbery victims. (860) Defendant participated in two robberies, and was convicted of several Hobbs Act counts. He requested a downward departure, claiming that because the victims of the robberies were involved in illegal activity, the robberies fell outside the heartland of Hobbs Act activities. The district court refused, and defendant argued on appeal that the court misunderstood its authority to depart. The Second Circuit disagreed, finding it clear that the district court considered defendant’s argument and rejected it. It therefore could not be said that the court refused to exercise its discretion. The court was not mistaken in its belief that it lacked authority to downwardly depart on the grounds asserted by defendant. There is no case law indicating illegal activities bring a case outside the Hobbs Act heartland. U.S. v. Fabian, 312 F.3d 550 (2d Cir. 2002), abrogated by U.S. v. Parkes, 497 F.3d 220 (2d Cir. 2007).
2nd Circuit will not review where no evidence court did not understand authority to depart. (860) Defendant argued that it was an abuse of discretion not to depart downward based on evidence that his daughter would suffer “life-long emotional trauma,” because of his imprisonment. Before sentencing, defendant sent the district court a letter requesting a downward departure based on family circumstances. The government responded that such a departure was unwarranted. At sentencing, the court concluded that there was “no reason to depart from the sentencing called for by the application of the guidelines.” Defendant did not argue that the judge failed to understand his authority to depart downward or that he misapplied the law. The judge had before him the government’s brief explaining when departures were appropriate. Because there were no facts suggesting that the court did not understand its authority to depart, the Second Circuit would not review the district court’s decision. U.S. v. Coriaty, 300 F.3d 244 (2d Cir. 2002).
2nd Circuit upholds court’s refusal to depart based on past cooperation with state prosecutors. (860) Typically, for a district court to depart downward for substantial assistance to authorities, a motion by the government is required. See USSG § 5K1.1. But, in this case, defendant assisted state prosecutors, not federal, which made § 5K2.0 an appropriate potential basis for departure. Therefore, the sentencing court had authority to consider a downward departure even without a motion by the government. See U.S. v. Kaye, 140 F.3d 86 (2d Cir. 1998). The sentencing court declined to depart, reasoning that anyone who had ever cooperated in a past prosecution would become eligible for a downward departure. It concluded that a departure might be appropriate when a defendant’s assistance is “contemporaneous” with a pending proceeding, but that defendant had assisted the state several years prior to the trial in the current case. Because defendant’s assistance occurred so long ago, his conduct was akin to a prior good deed, which is a discouraged basis for departure. Thus, although defendant’s prior actions were commendable, the Second Circuit held that the sentencing court did not abuse its discretion in determining that they were not so extraordinary that they justified a departure. U.S. v. Gaines, 295 F.3d 293 (2d Cir. 2002).
2nd Circuit has jurisdiction to review refusal to depart based on legal, rather than discretionary, grounds. (860) In rejecting defendant’s request for a downward departure based on aberrant behavior, the court stated that it had “carefully framed this ruling purely as a matter of law because it is my intention to make clear that if the Court of Appeals feels that I have the discretion to depart downward, I would certainly entertain that prospect. I would think the sentence is too harsh, but my reading of Zecevic and the new guideline leads me to believe that I lack the discretion to do so, and that’s the basis for my ruling on the departure.” Because the refusal to depart based on purely legal, rather than discretionary, grounds, the Second Circuit found it had jurisdiction to review the matter. U.S. v. Gonzalez, 281 F.3d 38 (2d Cir. 2002).
2nd Circuit cannot review where court explicitly recognized its ability to depart downward. (860) Defendant challenged the district court’s decision not to depart downward based on the allegedly aberrant nature of his conduct and his mental condition. Because the district court explicitly recognized its ability to depart downward, the Second Circuit found that its election not to do so was not reviewable. U.S. v. Brunet, 275 F.3d 215 (2d Cir. 2001).
2nd Circuit says it cannot review court’s refusal to depart based on atypical nature of money laundering. (860) Defendant was convicted of multiple counts of embezzlement from employee benefits funds, money laundering, and related counts. He argued that the district court erred as a matter of law by not deeming his money laundering atypical, and sentencing him under the embezzlement guideline as “the guideline section most applicable to the nature of this offense.” Appendix A. After defendant’s sentencing, Appendix A was amended and now no longer permits the court to find a case “atypical” and sentence outside the offense guideline. See Amendment 591 (2000). The Second Circuit did not reach the issue of whether the amendment applied retroactively because it found the court’s decision unreviewable. A district court’s refusal to downwardly depart based on the atypical nature of the conduct charged is unappealable unless the court fails to recognize it has authority to depart. During sentencing, the district court recognized it had authority to depart “on any of the areas … any and all …” that defendant briefed in his sentencing memo to the court. Further, the district court correctly found defendant’s conduct did not represent an “atypical” money laundering case. U.S. v. McCarthy, 271 F.3d 387 (2d Cir. 2001), abrogation on other grounds recognized by U.S v. Robinson, 430 F.3d 537 (2d Cir. 2005).
2nd Circuit holds that presentence confinement conditions may be proper basis for departure. (860) Defendant requested a downward departure on the basis of the conditions of confinement he suffered while incarcerated in the Dominican Republic while awaiting extradition to the U.S. The court stated that “under no circumstance is [defendant], who went voluntarily to his own country, entitled to a downward departure because the prison conditions were such that [he] was affected adversely.” The Second Circuit agreed with defendant that the court may have misunderstood its authority to depart. The court’s use of the phrase “under no circumstances” suggested that it may have believed that pre-sentence conditions of confinement – at least when such confinement occurs in a defendant’s “own” country – can never serve as the basis for a downward departure. This was not correct. The Sentencing Commission has not categorically proscribed consideration of this factor, and the panel could not say that conditions of confinement cannot be so severe as to take a particular case outside the heartland of the applicable Guideline. Since there was no indication that the Sentencing Commission contemplated that federal pre-sentence detainees would be kept in any detention facilities other than federal facilities, the panel held that presentence confinement conditions may, in appropriate cases, be a permissible basis for downward departures. U.S. v. Carty, 264 F.3d 191 (2d Cir. 2001).
2nd Circuit cannot review refusal to depart where no indication that judge misunderstood discretion. (860) Defendant argued at sentencing that a criminal history category of IV overstated his past criminal conduct and the likelihood of recidivism. The judge, recognizing that he could downwardly depart on this basis, declined to do so in the exercise of his discretion. The Second Circuit ruled that the judge’s refusal to depart downward was not reviewable on appeal because there was no indication that he mistakenly believed that he lacked the authority to depart as a matter of law. U.S. v. Desena, 260 F.3d 150 (2d Cir. 2001).
2nd Circuit does not review refusal to depart. (860) Defendant sought a downward departure by reason of his diminished capacity and the abuse he suffered as a child. However, a district court’s decision not to depart downward is ordinarily not reviewable, unless the refusal is due to an “erroneous interpretation of law,” or an erroneous view of the extent of its departure authority.” U.S. v. Labeille-Soto, 163 F.3d 93 (2d Cir. 1998). Since defendant alleged neither, the Second Circuit held that it lacked jurisdiction to review the decision not to depart. U.S. v. Aponte, 235 F.3d 802 (2d Cir. 2000).
2nd Circuit rejects court’s reasons for refusing to grant diminished capacity departure. (860) Defendant presented evidence that prior to his offense, he had a stable history and no criminal record. He then underwent a change in personality, and discovered from a psychiatrist that he had a “large vascular lesion in the area of the internal capsule.” The psychiatrist concluded that the lesion caused defendant’s personality change and resulting “bizarre behavior.” The district court refused to depart, noting that despite § 5K2.13, “its my firm belief that that’s a misplaced qualification or differentiation. If any such is to come into play in my mind, it would have to enter into the mens rea as to whether the defendant had the intention to do what he did ….” Although normally a court’s decision not to depart is not reviewable on appeal, the Second Circuit found that the court’s remarks indicated a violation of law that permitted review under 18 U.S.C. § 3742(a)(1). The court’s remarks meant one of two things, both of which required reversal. First, the court stated that it had “trouble” with § 5K2.13 and believed that it was “misplaced.” Thus, it was possible that the court did not exercise its discretion not to depart, but decided not to depart simply because it did not like § 5K2.13. Second, it was possible that the court mistakenly believed that it did not have the authority to grant a downward departure based on diminished capacity. Its statement suggested that it thought diminished capacity was a question of mens rea for the jury to decide at trial. U.S. v. Ventrilla, 233 F.3d 166 (2d Cir. 2000).
2nd Circuit rules judge understood claim that small departure “punished” defendant for cooperation. (860) Defendant pled guilty to counts arising from his participation in a conspiracy to steal automobile airbags and resell them to the public. He also pled guilty to drug charges. The government moved under § 5K1.1 and 18 U.S.C. § 3553(e) for a departure below the mandatory minimum based on defendant’s substantial assistance. The PSR and the defense recommended a sentence of time served (19 months) because, until defendant cooperated, the government had no knowledge of defendant’s drug trafficking activities. They contended that if defendant were sentenced more harshly than his co-defendants in the airbag conspiracy, he would be punished for his cooperation. The district court declined to adopt the PSR’s recommendation, and instead sentenced defendant to 60 months in prison. Defendant appealed the extent of the departure as “in violation of the law,” claiming it rested on the judge’s failure to understand that the 60-month sentence would punish defendant more severely than non-cooperating co-defendant and thereby would penalize him for his cooperation. The Second Circuit found this argument without merit. The record from the sentencing hearing demonstrated that the district court understood all of the material facts that were relevant to the determination of defendant’s sentence. The court’s refusal to ignore defendant’s commission of a separate drug trafficking offense did not reflect a “violation of the law” or a “misapplication of the guidelines.” U.S. v. Percan, 233 F.3d 164 (2d Cir. 2000).
2nd Circuit upholds refusal to depart for defendant who prevented another inmate’s suicide. (860) The district court ruled that it lacked the authority to depart downward on the basis that defendant prevented the suicide of another inmate. It found that defendant’s action was a charitable “good work” falling within USSG § 5H1.11, and as such was not relevant to the determination of whether a departure was warranted. However, the court also explicitly stated that even assuming that defendant’s charitable effort was a relevant criterion, his act was not so exceptional as to warrant a departure. This alternative holding rendered moot the question of whether the district court misunderstood its authority to depart. Thus, the Second Circuit ruled the district court’s denial of the motion for a departure was not appealable. U.S. v. Amezquito Acevedo, 229 F.3d 350 (2d Cir. 2000).
2nd Circuit affirms refusal to depart where defendant named another party as accomplice. (860) Defendant, a former New York City police officer, committed a vicious sexual assault on a man who was in police custody. The man was taken by another officer, either Schwarz or Wiese, into the bathroom, where defendant kicked and punched him, then forced a broken broomstick into the victim’s rectum, causing severe internal injuries. Defendant argued that the court failed to recognized its authority to depart downward to take account of defendant’s statement to the government that his accomplice was Weise, not Schwarz (as the government was arguing at trial). The district court concluded that defendant’s efforts to exonerate a supposedly innocent man and inculpate another was insufficient to justify a departure because “the trial proceeded to a verdict entirely without [defendant’s] ‘assistance’” and he did not break any “log-jam” in the case against his co-defendants. The Second Circuit found the issue non-reviewable. There was no particular reason to believe defendant was being truthful in naming Weise as his co-assailant. His assertion was never tested by cross-examination, the man he was supposedly trying to exonerate, Schwarz, did not call him as a witness, and the jury ultimately decided to convict only Schwarz, not Wiese. U.S. v. Volpe, 224 F.3d 72 (2d Cir. 2000).
2nd Circuit dismisses appeal of refusal to depart. (860) Defendant requested a downward departure under USSG §§ 5H1.4 and 5H1.6 based on his age, chronic hepatitis, and ongoing responsibility to care for his disabled wife. The judge considered and rejected defendant’s request. A defendant may not appeal a district court’s decision not to make a discretionary downward departure unless the court relied “on the mistaken belief that it lacked authority to depart.” Because there was no indication that the judge was unaware of his authority to depart, the Second Circuit dismissed defendant’s appeal. U.S. v. Middlemiss, 217 F.3d 112 (2d Cir. 2000).
2nd Circuit holds that mandate rule did not bar court from considering request for downward departure. (860) The district court dismissed a tax evasion information filed against defendant, ruling that his offer in compromise, submitted pursuant to the voluntary disclosure policy of the IRS, had been improperly turned down. In U.S. v. Tenzer, 127 F.3d 222 (2d Cir. 1997) (Tenzer I), the Second Circuit reversed, holding that defendant’s offer did not meet the requirements of that policy. Defendant then pled guilty, but requested a downward departure in part because of his voluntary disclosure to the IRS. The district court concluded that it could not depart because of the mandate in Tenzer I. The Second Circuit held that the mandate rule did not bar the court from departing. Tenzer I merely decided that defendant did not qualify for the voluntary disclosure policy; it did not decide any issues concerning sentencing. The district court could properly consider aspects of defendant’s case that, although irrelevant for purposes of conviction, might be relevant for sentencing. For example, although a defendant’s good intentions were not an appropriate basis for dismissal, they could be considered by the judge at sentencing. Judge Miner dissented. U.S. v. Tenzer, 213 F.3d 34 (2d Cir. 2000).
2nd Circuit holds that challenge to extent of downward departure is not cognizable on appeal. (860) Defendant argued that the district court erred by failing to explain the extent of its downward departure. The Second Circuit noted that such a claim is not cognizable on appeal. U.S. v. Joyner, 201 F.3d 61 (2d Cir. 2000).
2nd Circuit says extreme childhood abuse may warrant departure. (860) Although § 5H1.3 says that “[m]ental and emotional conditions are not ordinarily relevant” at sentencing, a defendant’s mental and emotional condition can be taken into account in “extraordinary” situations. See e.g. U.S. v. Lara, 905 F.2d 599 (2d Cir. 1990). Severe abuse suffered during childhood can impair a person’s mental and emotional conditions. Thus, the Second Circuit held that in extraordinary circumstances, district courts may properly depart downward where extreme childhood abuse caused mental and emotional conditions that contributed to defendant’s commission of the offense. The appellate court would not presume that the district court was aware of its authority to depart on this basis, since at the time of sentencing, the Second Circuit had not decided whether extreme childhood abuse could ever warrant a departure. Nonetheless, the panel did not remand for resentencing, because a departure under the facts of this case would have been an abuse of discretion. Although the instances of corporal punishment cited by defendant may have risen to abuse, defendant did not show, as required by § 5H1.3, that the abuse was so extraordinary that it could be assumed to cause mental or emotional pathology. U.S. v. Rivera, 192 F.3d 81 (2d Cir. 1999).
2nd Circuit rules court may not have known it could impose probation without departing. (860) Defendant had an offense level of 7 and a criminal history of I. Those calculations placed him within Zone A of the Sentencing Table, with a resulting sentencing range of 0-6 months. The PSR recommended against sending defendant to prison, finding a sentence of three years’ probation would serve defendant and the victim better. At sentencing, the judge adopted the guideline calculations in the PSR, but then said “I am not granting a departure. Although I have the authority, it is not warranted.” The judge sentenced defendant to six months in prison. The Second Circuit remanded, since judge’s comments suggested that he erroneously believed that he needed to depart downward to impose a probationary sentence. That belief, if held by the judge, was wrong, since the guidelines authorize a sentence of probation for a Zone A defendant without the necessity of a downward departure. U.S. v. Thorpe, 191 F.3d 339 (2d Cir. 1999).
2nd Circuit rules court was aware of authority to depart for family circumstances. (860) Defendant argued that the district court erred in refusing to depart due to his extraordinary family circumstances. He claimed that his responsibilities as a parent to an adopted son with drug problems merited a downward departure. A decision not depart is ordinarily not reviewable unless there is “clear evidence of a substantial risk that the judge misapprehended the scope of his departure authority.” The Second Circuit found no such evidence in this case. The district court’s statement that “the guidelines do not permit a departure” due to defendant’s obligations as a husband and father meant only that no departure would be permitted under the special circumstances of this case. A district court is presumed to be aware of the scope of its ability to depart downward. U.S. v. Walker, 191 F.3d 326 (2d Cir. 1999).
2nd Circuit finds court mistakenly believed statute required at least one month’s imprisonment. (860) The district judge imposed a sentence of one month of imprisonment, and three years of supervised release, the first five months of which were to be served in home detention. The judge said that he was “constrained by … the statute … [to] sentence defendant to at least one month in custody.” The judge added, “[I]f permitted by law, I would give him six months’ home detention.” The Second Circuit remanded because the judge misunderstood its ability to depart downward to impose a sentence of home detention. Neither the statute of conviction, 18 U.S.C. § 1344, nor the “B-Felony rule,” 18 U.S.C. § 3561, required that the judge to send defendant to prison at all. The only imprisonment requirement was in USSG § 5C1.1(c), which requires a sentence that includes at least one months’ imprisonment for defendants whose total offense level places them in Zone B and who are ineligible for probation. This “constraint” is imposed by the guidelines, not by statute. A court is free to depart from the guidelines requirements if it finds an aggravating or mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission. U.S. v. Lahey, 186 F.3d 272 (2d Cir. 1999).
2nd Circuit upholds refusal to depart for heart condition. (860) Section 5H1.4 authorizes a departure if a defendant suffers from an “extraordinary physical impairment.” Defendant challenged the district court’s decision not to depart downwardly because of his heart impairment. He claimed the district court focused primarily on the ability of the Bureau of Prisons to treat his heart condition medically without adequately considering his status as an informant and the effect that segregation would have on his health. The Second Circuit found no merit to this argument. The district court’s decision not to depart is normally unappealable. There was nothing in the record to indicate that the district court erroneously believed it lacked the authority to depart if it chose. The court refused to depart only after satisfying itself that defendant was receiving adequate treatment from the Bureau of Prisons, and only after the Chief of the FBI’s Witness Security Program reported that defendant would not be kept in segregation. U.S. v. Napoli, 179 F.3d 1 (2d Cir. 1999).
2nd Circuit finds judge was aware of authority to depart downward. (860) Defendants were sentenced to consecutive life terms for their involvement in several gang murders. They argued that these life terms should be remanded for resentencing because the judge failed to recognize that he had discretionary authority under the guidelines to depart downward. The Second Circuit found the claims without merit. In the first defendant’s case, although the judge stated that he had “no discretion” and that he “must impose a sentence of life,” the record clearly established that the judge knew he had the authority to depart and was imposing a life sentence because defendant did not present sufficient grounds to justify a departure. The judge noted that defendant was “arguing for a downward departure based on certain circumstances,” but that there were no “unique” circumstances present that would justify a departure. Likewise, after hearing the second defendant’s argument, the judge stated that he was declining to depart because “[t]here’s absolutely no basis to do so.” U.S. v. Diaz, 176 F.3d 52 (2d Cir. 1999).
2nd Circuit does not review refusal to depart in reverse sting case. (860) Defendant was arrested while stealing 50 kilograms of real and “sham” cocaine during a reverse sting operation. At sentencing, he sought a departure because his conviction resulted from a reverse sting in which the government had unique control over the quantity of cocaine placed in the warehouse. The Second Circuit held that it lacked jurisdiction over the appeal, since there was no showing that a violation of law occurred or that the guidelines were misapplied. The district court’s ruling was not prompted by any impermissible consideration or error of law; the court recognized its authority to depart. Moreover, the guidelines were not misapplied. Defendant’s actions evidenced an intent to steal all 50 kilograms of real and sham cocaine. U.S. v. Caban, 173 F.3d 89 (2d Cir. 1999).
2nd Circuit reviews failure to depart where court mistakenly believed guidelines permitted lower sentence. (860) The district court imposed a 63-month sentence, but ordered that it be deemed to have begun 18 months earlier so that defendant could be given credit for time served on an unrelated state charge. On appeal, both the government and defendant agreed that the court lacked authority to backdate the commencement of defendant’s sentence. However, defendant contended that the court should have departed downward to grant him the sentencing credit. The government contended that the court’s failure to depart was not appealable. The Second Circuit found the failure to depart appealable. When the sentencing court has indicated its desire to impose a sentence outside the guideline range, there is no material difference between a mistaken view that it had no power to depart and a mistaken view that it could impose such a sentence in a way that the guidelines do not permit. The court’s decision not to depart was reviewable because the court relied on legally erroneous assumptions as to its power to impose the shorter sentence, and those errors of laws led it to deny the departure. U.S. v. Labeille-Soto, 163 F.3d 93 (2d Cir. 1998).
2nd Circuit says delay in transferring alien to federal custody is grounds for downward departure. (860) Defendant illegally entered the country after having been deported. Before his federal conviction and after being sentenced on an unrelated state crime, he was confined for eight months in state jail on an INS detainer while awaiting transfer to federal custody. The district court applied the eight months served on the detainer toward defendant’s federal sentence by deeming that sentence to have begun when the INS placed the detainer on defendant. The court also granted defendant a one-level downward departure on the basis of his stipulated deportation. On appeal, the parties agreed that the district court erred when it deemed defendant’s sentence to have begun at the time the INS lodged its detainer. The Second Circuit vacated defendant’s sentence to allow the district court to revisit its departure decision. The time during which an alien is incarcerated solely due to the government’s delay in transferring him to federal custody and for which the alien does not receive credit provides a valid ground for departure. The court’s decision not to depart for the uncredited time served was reviewable on appeal because the court’s mistaken belief that it could directly credit defendant’s sentence may have affected its departure decision. The case was remanded to allow the district court to reconsider its departure decision. However, since defendant was no longer in the country, this limited resentencing should not take place until such time as he returned and was again before the court. U.S. v. Montez-Gaviria, 163 F.3d 697 (2d Cir. 1998).
2nd Circuit holds failure to explain extent of downward departure is not reviewable on appeal. (860) Defendants relied on U.S. v. Reyes, 116 F.3d 67 (2d Cir. 1997) to argue that the district court failed to explain adequately the extent of the downward departure. However, in U.S. v. Lawal, 17 F.3d 560 (2d Cir. 1994), the court held that it lacked jurisdiction to review the district’s explanation of the extent of a discretionary downward departure. The Second Circuit found these two cases inconsistent and rejected Reyes, holding that Lawal is the law of the circuit. A simple failure to explain the extent of a downward departure, without more, is unreviewable on appeal. U.S. v. Hargrett, 156 F.3d 447 (2d Cir. 1998).
2nd Circuit does not require lesser penalty despite conviction of lesser-included offense. (860) Defendant was convicted by a jury of possession of crack cocaine and was sentenced to 121 months. The Probation Department recommended a downward departure. Defendant argued that the court erred in failing to follow this recommendation because he was subject to the same sentence he would have received if he had been convicted of the “greater charge” of distribution. He believed he was entitled to a lesser penalty for conviction of the lesser possession charge. The Second Circuit found the claim without merit. The fact that defendant might have received the same penalty if he had been convicted of distribution was irrelevant. Possession of crack cocaine is a lesser-included offense of distribution in the sense that all of the elements necessary to a conviction for possession are also necessary to a conviction for distribution. This does not mean that possession offenses must be penalized more lightly than distribution offenses. The Probation report was only a recommendation and was not binding on the court. The decision not to depart was not appealable. U.S. v. Welbeck, 145 F.3d 493 (2d Cir. 1998).
2nd Circuit requires court to consider § 5K1.1 motion even if government refuses to recommend sentence. (860) Defendant pled guilty to fraud, money laundering and drug charges. The government filed a § 5K1.1 motion for a substantial assistance departure, but did not recommend a specific sentence. The judge refused to depart because the government did not provide a specific sentencing recommendation. The Second Circuit held that the district judge erred in refusing the consider the merits of the § 5K1.1 motion simply because the government did not recommend a specific sentence. Although § 5K1.1 gives a district court discretion whether to grant the government’s substantial assistance motion, a court must at least exercise that discretion when presented with a § 5K1.1 motion. The court’s express refusal to do so in this case resulted in a sentence “imposed in violation of law.” Just as a court’s failure to understand its authority to depart is a legal error appealable under § 3742(a)(1), it is likewise legal error for a court to expressly abdicate its discretion. U.S. v. Campo, 140 F.3d 415 (2d Cir. 1998).
2nd Circuit refuses to review refusal to depart based on consent to deportation. (860) Defendant contended that they were entitled to a one point downward departure based on their willingness to stipulate to deportability and accept deportation. The district judge assumed she had the authority to grant such a departure but declined to do so. The Second Circuit held that it lacked authority to review the court’s decision. The court did not address whether stipulation to departure can be a proper ground for departure or whether departure is warranted only as part of a negotiated plea agreement. The judge assumed that she had the power to grant the departure, but denied it in the exercise of her discretion. The Attorney General’s memorandum to federal prosecutors encouraging them to recommend sentence reductions in return for plea agreements that include consent to administrative deportation does not require courts to grant such departures. U.S. v. Zapata, 135 F.3d 844 (2d Cir. 1998).
2nd Circuit uses first-degree murder guideline where arson caused firefighter’s death. (860) Defendant was convicted of arson based on an intentional fire at his retail clothing store. A firefighter lost his life during the fire. Defendant challenged the district court’s use of § 2A1.1, the first-degree murder guideline, because the fireman’s death was not intentionally caused. The Second Circuit upheld the use of § 2A1.1 because it applies to any death that results from the commission of certain felonies. The application notes reference the federal felony-murder statute, 18 U.S.C. § 1111, as suggestive of which felonies are included. Section 1111 defines first-degree murder as a killing committed in the perpetration of, or attempt to perpetrate, any arson. The sentencing court did not err in refusing to depart downward under note 1 to § 2A1.1 on the ground that he did not knowingly or intentionally cause the firefighter’s death. The court was aware of its authority to depart but cited several aggravating factors, including defendant’s scheme to defraud an insurance company, his knowledge that tenants lived above the store, the use of an accelerant, and his decision to set a partly residential building on fire at night. U.S. v. Tocco, 135 F.3d 116 (2d Cir. 1998).
2nd Circuit cannot review refusal to depart to compensate for delay in arraignment. (860) Defendant argued that the district court erred in failing to depart downward to compensate him for the delay in arraignment, which had the effect of adding to his punishment for illegal reentry following deportation. The Second Circuit held that it had no authority to review the matter since the court was aware of its authority to depart. In the absence of any remarks by the district judge indicating doubt as to his authority to depart, the court’s silence should not be deemed as indication that the district court misunderstood its authority to depart. U.S. v. Lainez-Leiva, 129 F.3d 89 (2d Cir. 1997).
2nd Circuit remands because court may have misunderstood authority to depart under § 5K2.11. (860) Defendant illegally purchased a firearm without disclosing that he was a convicted felon. He pled guilty to being a felon in possession of a firearm. Defendant argued at sentencing that he had purchased the gun as a Christmas gift for his brother and was therefore entitled to a “lesser harms” downward departure under § 5K2.11. He sought to introduce testimony from his wife, who accompanied him on the day of the gun purchase. The government argued that this testimony was irrelevant since the lesser harms departure applies only where a defendant commits a criminal act in order to avoid some greater harm. The district court denied defendant’s motion, adopting all the reasons given by the government. The Second Circuit remanded because the district judge may have misunderstood his departure authority under § 5K2.11. The first paragraph of § 5K2.11 permits a departure only where the crime is committed to avoid a perceived greater harm. But the second paragraph permits a departure where the defendant’s conduct may not cause the harm sought to be prevented by the law at issue. The court’s statements suggested that it agreed with the prosecutor’s contention that a departure was legally unavailable here. U.S. v. Clark, 128 F.3d 122 (2d Cir. 1997).
2nd Circuit dismisses appeal where court explicitly noted authority to depart. (860) Defendant argued that the district court improperly declined to make a downward criminal history departure under § 4A1.3. The Second Circuit held that the refusal to depart was not appealable because the court explicitly stated that it had the power to depart. A refusal to depart downward is not appealable unless the court was unaware that it had the authority to depart. U.S. v. Edwards, 105 F.3d 1179 (7th Cir. 1997), affirmed, 523 U.S. 511 (1998).
2nd Circuit says Koon did not affect law barring review of refusal to depart. (860) It is well-settled that a court’s decision not to depart from the guidelines is not normally reviewable. Defendant argued that the Supreme Court’s recent decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996) altered this long-standing rule by requiring the use of an “abuse of discretion standard” in reviewing a judge’s decision not to depart. The Second Circuit held that Koon did not affect the law barring appeal of a judge’s refusal to depart. Koon concerned the appropriate standard for reviewing a judge’s decision to depart. It did not involve a judge’s decision not to depart. A sentencing judge’s refusal to depart remains appealable only where the guidelines were misapplied, the court misapprehended its authority, or imposed an illegal sentence. U.S. v. Brown, 98 F.3d 690 (2d Cir. 1996).
2nd Circuit holds that § 3742 governs appeal of Rule 35(b) reduction. (860) After defendant was sentenced, the district court reduced defendant’s sentence by five years based on the government’s Rule 35(b) motion. Defendant appealed the extent of that reduction. The Second Circuit held that an appeal of a Rule 35(b) motion is governed by 18 U.S.C. § 3742 (which confers limited appellate jurisdiction over appeals from sentences), rather than 28 U.S.C. § 1291 which grants broad appellate jurisdiction over appeals of final decisions). The only practical difference between Rule 35(b) and guideline § 5K1.1 is a matter of timing. Section 5K1.1 is based on substantial assistance before sentencing; Rule 35(b) is based on substantial assistance after sentencing. The two should be governed by the same standard. Allowing a Rule 35(b) motion to be governed by a more lenient standard of review would encourage defendants to postpone their assistance until after sentencing. Under § 3742, a defendant may not appeal the extent of a downward departure. Thus, the issue was not reviewable. U.S. v. Doe, 93 F.3d 67 (2d Cir. 1996).
2nd Circuit does not review refusal to depart based on priest’s charitable works. (860) Defendant, a Catholic priest, was convicted of conspiracy to possess stolen money. He claimed the district court erroneously refused to grant a downward departure for his charitable works and public service. The Second Circuit refused to review the matter, concluding the district court recognized its authority to depart, but elected not to do so. The court noted that generally charitable works and public service do not merit a departure, and that therefore the conduct would have to be “extraordinary” to merit a downward departure. It also found that defendant had benefits that few defendants have, including education, respect in his work, intelligence and the calling to serve as a priest. U.S. v. Millar, 79 F.3d 338 (2d Cir. 1996).
2nd Circuit finds judge recognized authority to depart. (860) Defendant claimed he was entitled to be resentenced because the district court erroneously believed it did not have the authority to grant a downward departure. The Second Circuit disagreed, concluding that the court recognized it had the power to depart on the grounds urged by defendant, but declined to do so because it found those grounds insufficient. The court believed the guidelines-prescribed imprisonment range was too severe, but gave no indication that it misunderstood its authority to depart. Accordingly, the failure to depart was not appealable. U.S. v. Chabot, 70 F.3d 259 (2d Cir. 1995).
2nd Circuit says silence does not show court was unaware of authority to depart. (860) Defendant argued that the district court failed to consider his request for a downward departure. The Second Circuit refused to review the matter, finding nothing in the record to suggest that the district court mistakenly believed it had no authority to depart downward. A district court’s silence concerning its refusal to depart does not support an inference that it misunderstood its authority. Moreover, the written judgment expressly stated that the court found no reason to depart from the guidelines. U.S. v. Moore, 54 F.3d 92 (2d Cir. 1995).
2nd Circuit does not review district court’s failure to sua sponte depart downward. (860) Defendant argued that the district court erred in failing to sua sponte depart downward based on coercion. Defendant did not raise this issue at sentencing. The Second Circuit refused to review the matter because there was no indication that the district court misunderstood its authority to depart downward. The district court’s silence did not support an inference that the court misunderstood its authority to depart. Moreover, by failing to raise this issue at sentencing, defendant waived the claim. U.S. v. Hurtado, 47 F.3d 577 (2d Cir. 1995).
2nd Circuit says factual findings not necessary for refusal to depart. (860) Defendant argued that the district court failed to make sufficient factual findings to support its refusal to depart downward for coercion or duress. The Second Circuit held that a court’s decision not to depart is not open to review. Nothing in the record suggested that the judge concluded he did not have legal authority to depart. However, although district courts are not required to explain the denial of a requested departure, it is better practice for the sentencing court to reveal its awareness of the request, so that the reviewing court can be certain that the failure to depart did not result from lack of awareness. U.S. v. Amato, 46 F.3d 1255 (2d Cir. 1995).
2nd Circuit says judge need not state reasons for denying downward departure or sentence at bottom of range. (860) Defendant argued that the district judge did not explicitly rule on his motion for a downward departure or for a sentence at the low end of his guideline range. The 2nd Circuit found no error. The district court’s exercise of discretion is generally unreviewable when it imposes a sentence within a guideline range or denies a downward departure. The court need not articulate its reasons. U.S. v. Harris, 38 F.3d 95 (2nd Cir. 1994).
2nd Circuit concludes that judge was aware of authority to depart for coercion or duress. (860) Defendant argued that the district court should have departed under § 5K2.12 based on coercion or duress. The 2nd Circuit refused to review the matter, concluding that the district judge was aware of his authority to depart, but found no basis for doing so. The judge found that defendant was “well into” the offense before there was any coercion against him. U.S. v. Podlog, 35 F.3d 699 (2nd Cir. 1994).
2nd Circuit refuses to review failure to depart. (860) Defendant argued that the district court should have departed from the money laundering guideline because his conduct fell outside the “heartland” of the money laundering statute. The 2nd Circuit refused to review the matter, since the sentencing judge was clearly aware of his authority to grant a downward departure, but declined to exercise it. U.S. v. Piervinanzi, 23 F.3d 670 (2nd Cir. 1994).
2nd Circuit rules district court was aware of its authority to depart downward. (860) In rejecting defendant’s request for a downward departure, the district court said “I do it for him, I have to do it for everybody. No. No. No. Your argument is not fair.” The 2nd Circuit found that this comment did not show that the district court did not believe it could not depart. Rather, the court simply refused to do so in this case. Therefore, the refusal to depart downward was not appealable. U.S. v. Williams, 23 F.3d 629 (2nd Cir. 1994).
2nd Circuit holds failure to state reasons for downward departure is not appealable by defendant. (860) Defendant received a substantial downward departure. However, after pointing to deeper sentence reductions received by co-defendants, he challenged the departure on the ground that the court may have limited the departure based on invalid factors such as his superior employment opportunities. He claimed that these impermissible factors might have been revealed if the court had stated the reasons for his sentence, as required by 18 U.S.C. § 3553(c). The 2nd Circuit held that it lacked jurisdiction to consider the claim. Unquestionably a defendant could challenge a failure to state reasons for making an upward departure. However, to permit a defendant to appeal from a downward departure simply because the court failed to state reasons for the sentence would impermissibly erode § 3742(a)(3), which restricts defense appeals to upward departures. U.S. v. Lawal, 17 F.3d 560 (2nd Cir. 1994).
2nd Circuit says adoption of one ground for departure does not imply doubt as to authority to depart on other grounds. (860) The district court departed downward based on defendant’s age and health. Defendant asked for a remand because the district court did not explicitly reject his request for an additional downward departure on the ground that his criminal conduct was aberrant. The 2nd Circuit held that where the record discloses no confusion over the district court’s ability to depart based on a particular circumstance, the court’s adoption of a different ground for departure does not imply doubt as to its legal authority to depart on the unmentioned ground. Because a defendant may not appeal from a failure to grant a discretionary downward departure, the appeal was dismissed. U.S. v. Schmick, 21 F.3d 11 (2d Cir. 1994).
2nd Circuit says “I wish the law permitted me to do something, but it doesn’t” showed unawareness of authority to depart. (860) In her plea agreement, defendant agreed not to move for a downward departure. However, her counsel asked the court to impose the minimum possible sentence, after advising the court of the “grave personal family difficulties” that defendant faced as the widowed mother of five children, three with serious health problems. The district court, in response, stated “I . . . wish that the law permitted me to do something, but it doesn’t,” and then imposed the minimum guideline sentence of 51 months. The 2nd Circuit remanded because this statement indicated the district court may not have been aware of its authority to depart, sua sponte, based on defendant’s family circumstances. The fact that the judge had in the past granted a downward departure on account of family circumstances, and had also previously departed downward sua sponte, did not, in light of the judge’s language, prove that he was aware of his authority to depart here sua sponte. U.S. v. Ekhator, 17 F.3d 53 (2nd Cir. 1994).
2nd Circuit says court may rely on analogous state law to determine extent of downward departure. (860) The district court departed downward under section 5K1.1 from a 360-month to life guideline range, but because of the limited extent of defendant’s cooperation, found it would be inappropriate to depart below the 25-year sentence defendant would have received if sentenced under state law. Defendant argued that this reference to a hypothetical sentence under state law was erroneous. The 2nd Circuit held that because the reference to the analogous state law influenced only the extent of the departure rather than the decision to depart, the court’s exercise of discretion was not reviewable. While it would be error to make the decision to depart on the basis of a hypothetical state sentence, it was within the district court’s broad discretion to refer to the state sentence in determining the extent of the departure based on other grounds. U.S. v. Lucas, 17 F.3d 596 (2nd Cir. 1994).
2nd Circuit upholds refusal to depart even where role adjustment is unavailable to sole participant. (860) In a prior appeal, 990 F.2d 72 (2nd Cir. 1993), the 2nd Circuit ruled that a mitigating role adjustment under § 3B1.2 is not available where the defendant is technically the only participant in the offense because the other person was an undercover agent. However, it ruled that the judge had discretion to depart downward based on defendant’s role in the offense. On remand, the district court declined to depart. The 2nd Circuit found that the normal rule barring review of discretionary refusals to depart applied. The prior decision did not require a court to depart under these circumstances. U.S. v. Speenburgh, 13 F.3d 39 (2nd Cir. 1993).
2nd Circuit says refusal to depart is not appealable. (860) Defendant claimed that the district court erred in not granting him a downward departure due to extraordinary circumstances under section 5K2.0. The 2nd Circuit refused to review the decision. Absent a showing that a sentencing court was under the mistaken belief that it lacked authority to depart downward, the exercise of its discretion not to depart is not appealable. There was no such showing here. U.S. v. McGregor, 11 F.3d 1133 (2nd Cir. 1993).
2nd Circuit refuses to review failure to depart under section 5K1.1 or 5K2.13. (860) The 2nd Circuit refused to review the district court’s failure to depart under either section 5K1.1 or section 5K2.13. Nothing in the record suggested that the judge held an erroneous view of his authority to depart. Therefore the denial of the request for a departure was not reviewable. U.S. v. Zackson, 6 F.3d 911 (2nd Cir. 1993).
2nd Circuit holds that refusal to depart from range in Revocation Table is not cognizable on appeal. (860) Defendant pled guilty to violating the terms of his supervised release. He challenged the district court’s inability to grant him a reduction in offense level for acceptance of responsibility. The 2nd Circuit found that since the Revocation Table in Chapter 7 does not employ offense levels, defendant’s appeal should be construed as challenging the district court’s refusal to depart downward from the sentencing range specified in section 7B1.4. A district court’s refusal to depart downward from the sentencing range in the Sentencing Table is not cognizable on appeal as long as the court recognizes that it had authority to depart. This rule extends to the sentencing ranges set forth in the Revocation Table. There was no equal protection violation in the choice of different structures and approaches for the Sentencing Table and the Revocation Table. U.S. v. Grasso, 6 F.3d 87 (2nd Cir. 1993).
2nd Circuit finds court exercised discretion in denying departure while suggesting Commission considered factors. (860) Defendant appealed the district court’s refusal to grant a downward departure from his sentence for being found in the United States after being deported. Defendant argued that he should receive a departure because a prior state conviction affected both his criminal history and his offense level, and because he would likely be punished for violating his state parole. The district court refused to depart, stating that the Sentencing Commission “must have known” that crimes like defendant’s would have the consequences defendant pointed out and that “there is not a good reason” for a departure. The 2nd Circuit concluded that the district court had merely exercised discretion in refusing to depart, and thus that the decision was unreviewable. U.S. v. Whittaker, 999 F.2d 38 (2nd Cir. 1993).
2nd Circuit denies jurisdiction over scope of downward departure for substantial assistance. (860) On the government’s motion, the district court granted a downward departure for substantial assistance. Defendant, however, contended that the quality of his assistance justified a greater departure. The 2nd Circuit refused to consider the argument, holding that it lacked jurisdiction to review the extent of a downward departure. U.S. v. John Doe #1, 996 F.2d 606 (2nd Cir. 1993).
2nd Circuit holds that refusal to depart downward is not appealable. (860) The 2nd Circuit summarily rejected defendant’s claim that the district court should have departed downward, since a refusal to depart from the applicable guideline range is not appealable. U.S. v. Alaga, 995 F.2d 380 (2nd Cir. 1993).
2nd Circuit says refusal to depart is not appealable. (860) The 2nd Circuit refused to review the district court denial of defendant’s motion for a downward departure. A refusal to depart downward from the guidelines is not appealable unless the court mistakenly believed it lacked authority to depart, which was not the case here. U.S. v. Miller, 993 F.2d 16 (2nd Cir. 1993).
2nd Circuit refuses to consider possible breach of plea agreement where defendant waived right to appeal sentence. (860) Defendant’s plea agreement provided that he waived his right to appeal his sentence if it fell within a specified range. Defendant’s sentence was at the high end of the specified range, based in part on the judge’s finding that defendant was a minor participant rather than, as characterized by the plea agreement, a minimal participant. Defendant argued that the government breached the plea agreement by failing to justify to the court the plea agreement’s conclusion that he was a minimal participant, and that this breach entitled him to challenge the merits of his sentence. The 2nd Circuit rejected this argument. Under some circumstances the breach of a plea agreement may render a defendant’s plea involuntary. But a defendant who has secured the benefit of a plea agreement and waived his right to appeal a certain sentence may not appeal the merits of a sentence that conforms to the agreement. This would render the agreement meaningless. U.S. v. Salcido-Contreras, 990 F.2d 51 (2nd Cir. 1993).
2nd Circuit refuses to review failure to depart downward. (860) The 2nd Circuit refused to review the district court’s failure to depart downward. The district court rejected a possible downward departure only on prudential grounds, not on any supposed lack of authority. U.S. v. Caceda, 990 F.2d 707 (2nd Cir. 1993).
2nd Circuit holds that defendant waived objection to lack of minor role reduction. (860) The 2nd Circuit held that by failing to object to the finding in the presentence report that he was not a minor participant, and by failing to raise this issue at sentencing, defendant waived his right to appeal the district court’s failure to grant him such a reduction. U.S. v. Agramonte, 980 F.2d 847 (2nd Cir. 1992).
2nd Circuit holds that defendant waived objection to lack of minor role reduction. (860) The 2nd Circuit held that by failing to object to the finding in the presentence report that he was not a minor participant, and by failing to raise this issue at sentencing, defendant waived his right to appeal the district court’s failure to grant him such a reduction. U.S. v. Agramonte, 980 F.2d 847 (2nd Cir. 1992).
2nd Circuit reaffirms that refusal to depart is not appealable. (860) One defendant claimed that the district court should have made a downward criminal history departure and the other defendant claimed that the district court should have departed downward based upon her substantial assistance. The 7th Circuit refused to review the refusals to depart. The first defendant’s request for a downward departure would have no effect upon the mandatory minimum sentence he received, and a refusal to depart downward is not appealable. The second defendant’s argument for a substantial assistance departure in the absence of a government motion was foreclosed by the absence of a credible assertion that the government’s refusal to make the motion was based on an unconstitutional motive. U.S. v. Rivera, 971 F.2d 876 (2nd Cir. 1992).
2nd Circuit affirms that district court was aware of its authority to depart downward. (860) In rejecting defendant’s request for a downward departure based upon his wife’s medical condition, the district court stated “I am very sorry that that is the case, but I think the kind of conduct that this man was involved in, I cannot consider a downward departure.” The 2nd Circuit affirmed that the district court was aware of its authority to depart downward. The court’s statement indicated that in view of the seriousness of defendant’s offense, it would be inappropriate to depart. U.S. v. Caming, 968 F.2d 232 (2nd Cir. 1992), abrogation on other grounds recognized by Peck v. U.S., 73 F.3d 1220 (2d Cir. 1995).
2nd Circuit finds record ambiguous as to whether judge was aware of his ability to depart. (860) Defendant requested a downward departure based on several grounds, including extraordinary family ties, lack of sophistication in completing the crime, potential for victimization in jail, and the fact the crime was an aberration from defendant’s normal behavior. The district court denied defendant’s request. The 2nd Circuit agreed that the grounds discussed gave the district court legal authority to depart downward, and remanded because it was unclear from the record whether the court was aware of its ability to depart. The judge stated: “I have the authority, but I really don’t think that if I did so–I believe I would be violating the law. . . . The Court’s got the authority to depart from the guidelines whenever it feels it can do so justifiably and within the meaning of the interpretation of the guidelines through the courts and the statutes itself. I don’t think I have a case where I can.” U.S. v. Ritchey, 949 F.2d 61 (2nd Cir. 1991).
2nd Circuit rejects claim that district court mistakenly believed it lacked authority to depart downward. (860) Defendant argued that the district court’s refusal to depart downward was based on a mistaken view that it lacked discretion to do so, and thus the appellate court had authority to review the question. The 2nd Circuit rejected this claim. As shown in the record, the district court refused to depart because it believed that defendant had not satisfied either of the two elements required for a downward departure based on reduced mental capacity, reduced capacity and a causal link between that reduced capacity and the commission of the charged offense. U.S. v. Prescott, 920 F.2d 139 (2nd Cir. 1990).
2nd Circuit rejects claim that district court mistakenly believed it lacked authority to depart downward. (860) Defendant argued that the district court’s refusal to depart downward was based on a mistaken view that it lacked discretion to do so, and thus the appellate court had authority to review the question. The 2nd Circuit rejected this claim. As shown in the record, the district court refused to depart because it believed that defendant had not satisfied either of the two elements required for a downward departure based on reduced mental capacity, reduced capacity and a causal link between that reduced capacity and the commission of the charged offense. U.S. v. Prescott, 920 F.2d 139 (2nd Cir. 1990).
2nd Circuit refuses to review district court’s failure to depart downward. (860) Defendant argued that the district court should have departed downward because his guideline sentence was unreasonably harsh, given his minor role in the offense. The 2nd Circuit disposed of the argument by noting that a district court’s failure to depart downward is unreviewable, absent a showing that a violation of law occurred or that the guidelines were misapplied. U.S. v. Charria, 919 F.2d 842 (2nd Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Castano, 999 F.2d 615 (2nd Cir. 1993).
2nd Circuit remands case where unclear whether judge knew he could depart. (860) Defendant urged a downward departure on the basis of duress and his extensive family responsibilities. It was beyond dispute that defendant had extensive family responsibilities, and the 2nd Circuit found that the record was unclear as to whether the district judge was aware that he had the ability to depart on this basis. At one point the judge suggested that he concluded that defendant’s circumstances did not justify a departure, and at another point the judge suggested that he would have given defendant a sentence of probation, but that his “hands are tied by the new guidelines.” The case was remanded for the district court to clarify whether it recognized that it had the discretion to depart downward under the guidelines. U.S. v. Sharpsteen, 913 F.2d 59 (2nd Cir. 1990).
2nd Circuit holds that discretionary decisions not to depart are not reviewable on appeal. (860) The 2nd Circuit ruled that it had no jurisdiction to review a district court’s discretionary decision not to depart from the guidelines based upon a defendant’s failing physical condition. It held that based upon prior authority, discretionary decisions not to depart are unreviewable on appeal. U.S. v. Tillem, 906 F.2d 814 (2nd Cir. 1990).
3rd Circuit infers that court exercised discretion to deny downward departure. (860) Defendant pled guilty to possession of child pornography, and was sentenced to 96 months. He argued that the district court erred by failing to explicitly address his request for a downward departure based on mental health issues. Under U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006), district courts are required to “formally rul[e] on the motions of both parties, and stat[e] on the record whether they are granting a departure.” Here, although the district court did not explicitly deny defendant’s request for a downward departure, the Third Circuit was able to infer that the district court used its discretion because it was fully informed on the issues prompting the request, and the government requested that “the Court exercise its discretion to deny the downward departure….” This demonstrated that the government acknowledged that the district court had discretion to grant a possible departure. As a result, the panel ruled that the district court did use its discretion to deny the request for a downward departure, choosing instead to grant a slight variance. Because the district court used its discretion, the appellate court lacked jurisdiction to review the discretionary decision not to depart downward. U.S. v. Handerhan, 739 F.3d 114 (3d Cir. 2014).
3rd Circuit holds that it lacked jurisdiction over appeal of extent of Rule 35(b) sentence reduction. (860) Defendant originally was sentenced to 262 months for drug trafficking charges. One year later, in response to the government’s motion under Fed. R. Crim. P. 35(b), the district court reduced defendant’s sentence to 120 months. After the reduction, defendant discovered that the government’s Rule 35(b) motion had not included mention of the assistance given the government by defendant’s brother, on defendant’s urging. Both defendant and his brother had been told by the case agent that such assistance could be the basis for a sentence reduction. The district court held that even if it had the power to credit “surrogate assistance” under Rule 35(b), it would not have reduced defendant’s sentence any further than the reduction it had already granted. The Third Circuit held that it lacked jurisdiction over the appeal. In U.S. v. Cooper, 437 F.3d 324 (3d Cir. 2006), abrogation recognized by U.S. v. Wells, 279 Fed.Appx. 100 (3d Cir. 2008) (unpublished) No. 06-1456, the court followed its pre-Booker precedent holding that it does not have jurisdiction to review a sentencing court’s discretionary decision to depart downward from the guidelines. Likewise, the court here relied on its pre-Booker view that it does not have jurisdiction to consider an appeal from a § 5K1.1 order that does not allege a violation of 18 U.S.C. § 3742(a). U.S. v. McKnight, 448 F.3d 237 (3d Cir. 2006).
3rd Circuit infers court was aware of authority to depart where government conceded such authority at sentencing. (860) In rejecting a downward departure, the judge said: “I do not find that there are grounds for a downward departure, as you have requested, and I’m going to deny that.” The Third Circuit was “chagrined” that the district court did not make it “crystal clear” whether the refusal to depart was because it did not believe that it had the authority to do so, or simply was exercising its discretion not to depart. Nonetheless, the state of the record allowed the panel “to divine, albeit indirectly” that the judge understood his authority to depart since the government itself acknowledged at sentencing that the court had the power to depart. U.S. v. D’Angelico, 376 F.3d 141 (3d Cir. 2004).
3rd Circuit says discretionary refusal to depart downward for disparity between co-defendants is not reviewable. (860) Three defendants argued that they were entitled to a downward departure because they received higher sentences than those imposed on co-conspirators sentenced by a different judge. The Third Circuit noted that U.S. v. Cifuentes, 863 F.2d 1149, 1156 n.5 (3d Cir. 1988) held that a “[d]isparity of sentence between co-defendants does not of itself show an abuse of discretion.” But in any event, the district court recognized that it had discretion to depart downward based on disparity, and declined to do so. Accordingly, the Third Circuit said “we have no jurisdiction to review its exercise of discretion.” U.S. v. Hart, 273 F.3d 363 (3d Cir. 2001).
3rd Circuit remands where court sentenced defendant without ruling on request for downward departure. (860) The district court sentenced defendant without ruling on his request for a downward departure. Thus, the Third Circuit had no way of knowing why the court denied the requested departure. If the court chose not to depart as an exercise of discretion, the appellate court had no jurisdiction to review the matter. See U.S. v. Denardi, 892 F.2d 269 (3d Cir. 1989). The government conceded that under U.S. v. Mummert, 34 F.3d 201 (3d Cir. 1994), the matter should be remanded to give the district court an opportunity to explain its refusal to grant defendant’s pro se motion. Accordingly, the panel remanded so that the district court could clarify its rejection of defendant’s motion for a downward departure. U.S. v. Powell, 269 F.3d 175 (3d Cir. 2001).
3rd Circuit holds that court was aware of authority to depart. (860) Defendant unsuccessfully sought a downward departure based on his criminal history, his rehabilitation, and his presentence incarceration in county jail under substandard conditions. He argued that in denying the motion based on his presentence incarceration, the district court did not make clear whether it was denying the departure on legal or discretionary grounds. The Third Circuit found that the district court’s comments were not sufficiently ambiguous to require remand. After finding defendant’s criminal history did not overstate his criminal record, the district court set out to discuss “any other downward departures.” When it stated “although the Court feels it has the authority to grant a departure here,” it was referring to all of the other downward departures sought by defendant, and not just his post-offense rehabilitation, which was the next item that the court discussed. Thus, when the court said that “I don’t think what has been represented to the court here is the type of incarceration that would warrant any consideration of the guidelines for departure,” the court was not stating that it had no legal authority to grant a departure based on the conditions of defendant’s pretrial confinement, but rather that defendant had not persuaded the court that a departure was appropriate in his case. U.S. v. Stevens, 223 F.3d 239 (3d Cir. 2000).
3rd Circuit holds that court correctly understood discretion to depart for extraordinary physical ailment. (860) Defendant was diagnosed with AIDS in July 1998. At sentencing, he contended that this condition was an extraordinary physical impairment warranting a departure under § 5H1.4. The Third Circuit held that it lacked jurisdiction to review the district court’s refusal to depart. The transcript revealed that the court declined to depart because defendant committed the instant crime after his AIDS diagnosis and because he could obtain adequate medical care while incarcerated. Although one statement by the district court suggested the court incorrectly believed that a terminal illness can never serve as a basis for departure, when viewed in the entire context of the sentencing hearing, this statement did not reflect the district court’s rationale for not departing. U.S. v. Hernandez, 218 F.3d 272 (3d Cir. 2000).
3rd Circuit says judge not required to suspend drug testing where no evidence of drug abuse. (860) The district court imposed special conditions of supervised release requiring defendant to undergo testing and treatment for drugs and alcohol, prohibiting him from having unsupervised contact with minors, and forbidding him from possessing pornography of any type. The Third Circuit upheld the drug testing, since it is a mandatory condition of supervised release, regardless of the defendant’s drug history. 18 U.S.C. § 3563(a)(5). Although the statute provides that the condition “may be ameliorated or suspended” if “reliable sentencing information indicates a low risk of future substance abuse,” the court is not required to do so. The drug treatment condition was also proper. The district court only ordered drug treatment “if necessary” and “as directed by the probation officer.” If defendant’s tests reveal no evidence of drug use, then treatment would not be “necessary” and thus, could not be required. The Third Circuit was unable to review defendant’s remaining abuse of discretion claims, and remanded for the district court to state its reason for requiring alcohol testing and treatment, prohibiting unsupervised contact with minors, and forbidding defendant from possessing pornography. U.S. v. Loy, 191 F.3d 360 (3d Cir. 1999).
3rd Circuit suggests government misconduct can justify downward departure. (860) Defendant, an attorney, agreed to launder funds for an undercover agent posing as a drug dealer. During the course of the 13-month investigation, however, the government agent insinuated himself into a close social relationship with defendant, which culminated, on one occasion, in sexual intercourse. Defendant argued to the district court that a downward departure was warranted because of the government’s misconduct. The Third Circuit found it unclear whether the court made a discretionary decision not to depart based on the facts, or whether it believed it lacked authority to depart. Because the case was being vacated on other grounds for resentencing, the court did not decide this issue. However, it noted that the district court was not precluded from departing. Absent an express prohibition by the Sentencing Commission, a sentencing court is free to consider, in an unusual case, whether or not the factors that make it unusual are sufficient to justify a departure. Departures based on investigative misconduct unrelated to a defendant’s guilt are not expressly prohibited as grounds for departure, and therefore should not be categorically proscribed. U.S. v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998).
3rd Circuit has no jurisdiction to review extent of substantial assistance departure. (860) Defendant challenged the extent of the district court’s § 5K1.1 downward departure for substantial assistance. The Third Circuit held that the extent of a district court’s downward departure is not subject to appellate review. If appellate courts do not have jurisdiction to review a district court’s discretionary refusal to depart downward, it follows that they do not have jurisdiction where there has been some exercise of that discretion. U.S. v. Khalil, 132 F.3d 897 (3d Cir. 1997).
3rd Circuit lacks jurisdiction to review challenge of sentence at top of guideline range. (860) Defendant argued that because he was only 18 years old at the time he committed his crime, the district court abused its discretion when it imposed the maximum guideline sentence. The Third Circuit held that it lacked jurisdiction to review the sentence because it was within the applicable guideline range and defendant did not allege a violation of law. The applicable statute that lists the grounds upon which a defendant may appeal a final sentence, 18 U.S.C. § 3742(a), does not include abuse of discretion in imposing a sentence within the guideline range. U.S. v. Richmond, 120 F.3d 434 (3d Cir. 1997).
3rd Circuit refuses to review court’s failure to depart down for criminal history. (860) Defendant argued that the district court erred in failing to make a downward criminal history departure. The Third Circuit held that the court’s refusal to depart was not reviewable because the court neither misunderstood nor misapplied the law in evaluating defendant’s request. While the court did not explain its rationale for declining to exercise its discretion to depart under § 4A1.3, the court explicitly stated that the guidelines were necessary because defendant was a danger to himself and other people. This statement showed that the court believed that defendant’s criminal history designation did not overstate his past criminal conduct. U.S. v. McQuilkin, 97 F.3d 723 (3d Cir. 1996).
3rd Circuit refuses to review failure to depart under § 5H1.4. (860) Defendant sought a downward departure under § 5H1.4 due to his medical condition (a seriously decreased lung function). The Third Circuit did not review the matter, finding the refusal to depart was based on defendant’s failure to present sufficient evidence to warrant a departure under § 5H1.4. The district court’s refusal to exercise its discretion is not subject to review. U.S. v. Veksler, 62 F.3d 544 (3d Cir. 1995).
3rd Circuit lacks appellate jurisdiction where lower court was aware of its power to depart. (860) Defendant argued that the district court erred in refusing to depart despite her claims of duress, ill health, and diminished capacity. The Third Circuit held that it lacked appellate jurisdiction over this issue, since the record demonstrated that the district court was aware of its power to depart, but, in an exercise of discretion, chose not to do so. U.S. v. Miller, 59 F.3d 417 (3d Cir. 1995).
3rd Circuit remands where unclear that court knew it could depart for diminished capacity. (860) Defendant argued that the district court erred in denying his request for a downward departure for diminished capacity under § 5K2.13. The 3rd Circuit remanded for the court to clarify why it refused to depart. Since § 5K2.13 makes clear that a downward departure for diminished capacity is permissible under some circumstances, it was likely the refusal to depart was discretionary. However, the basis for the refusal to depart was impossible to discern from the record. To avoid wasting time analyzing the issue, the case was remanded for a clarification. U.S. v. Mummert, 34 F.3d 201 (3rd Cir. 1994).
3rd Circuit says type of false statement and harmful financial consequences were not grounds for downward departure. (860) Defendant was convicted of making a false statement under oath. He argued that his false declaration was “atypical” because he had nothing to do with the underlying offense. He also contended that a downward departure was warranted because his conviction might result in the suspension of all future government contracts for himself and other businesses owned by his family. The 3rd Circuit found that it had jurisdiction to review the matter because the district court concluded that the guidelines did not authorize it to depart. However, neither of defendant’s reasons justified a downward departure. The fact that defendant had nothing to do with the underlying offense did not show that his offense differed from the norm. Note 3 to § 2J1.3 shows that the sentencing commission intended the perjury guideline to apply regardless of whether there was a conviction for the underlying offense. Nor did the financial consequences for defendant and his family justify a downward departure. Section 5H1.2 says that a departure based on a defendant’s vocational skills should only be granted in exceptional circumstances. U.S. v. Reilly, 33 F.3d 1396 (3rd Cir. 1994).
3rd Circuit affirms that district court rejected defendant’s request for downward departure on the merits. (860) The 3rd Circuit rejected defendant’s claim that it had jurisdiction to review the district court’s refusal to depart downward based on an overrepresentation of his criminal history category and a youthful lack of guidance. The record suggested that the district court considered both of defendant’s suggested justifications and rejected them on their merits. Therefore, the court was without jurisdiction to review the refusal to depart. U.S. v. Frazier, 981 F.2d 92 (3rd Cir. 1992).
3rd Circuit rejects downward departure based upon work history, family responsibility, role in community affairs. (860) The 3rd Circuit rejected defendant’s claim that the district court erred in not departing downward based upon his work history, family responsibility, role in community affairs and lack of criminal history. The Sentencing Commission has determined that factors such as family responsibility, work history and ties to the community may not be taken into consideration in determining an appropriate sentence. Moreover, defendant’s lack of criminal history was taken into account in placing him in criminal history category I. Finally, the court lacked jurisdiction to consider the sentencing court’s refusal to depart downward, unless the refusal was based on the erroneous belief that it lacked the power to do so. U.S. v. Salmon, 944 F.2d 1106 (3rd Cir. 1991).
3rd Circuit rules it has no jurisdiction to consider denial of request for substitute detention. (860) Defendant received a four-month term of imprisonment, at the bottom of his guideline range. He contended that the district court abused its discretion by denying his request to substitute confinement of home, community or halfway house detention. The 3rd Circuit found that it did not have jurisdiction to review a sentencing court’s discretionary refusal to impose a substitute detention under guidelines § 5C1.1(c)(2). The rationale of cases holding that a court has no jurisdiction to review a failure to depart downward applied here as well. U.S. v. Perakis, 937 F.2d 110 (3rd Cir. 1991).
3rd Circuit finds district court did consider defendant’s request for downward departure. (860) Defendant argued that it was not clear from the record that the district court considered his request for a downward departure. The 3rd Circuit disagreed. The transcript of the sentencing hearing showed that defendant’s attorney requested a downward departure. The judge then stated that it was giving defense counsel’s arguments “full weight” and had taken off one point in formulating the guideline range. U.S. v. Georgiadis, 933 F.2d 1219 (3rd Cir. 1991).
3rd Circuit finds district court did consider defendant’s request for downward departure. (860) Defendant argued that it was not clear from the record that the district court considered his request for a downward departure. The 3rd Circuit disagreed. The transcript of the sentencing hearing showed that defendant’s attorney requested a downward departure. The judge then stated that it was giving defense counsel’s arguments “full weight” and had taken off one point in formulating the guideline range. U.S. v. Georgiadis, 933 F.2d 1219 (3rd Cir. 1991).
3rd Circuit rules sentencing court need not state on the record that it has considered the requested departure. (860) Defendant argued that when a defendant requests a discretionary downward departure, a sentencing court must always indicate on the record that it knows it had authority to depart, considered the defendant’s request to do so, and decided not to depart. The 3rd Circuit rejected this, and held that a sentencing court does not commit reversible error by failing to state expressly on the record that it has considered and exercised discretion when refusing a requested downward departure. The statute controlling judicial sentencing statements, 18 U.S.C. § 3553(c), does not require such a statement. U.S. v. Georgiadis, 933 F.2d 1219 (3rd Cir. 1991).
3rd Circuit rules sentencing court need not state on the record that it has considered the requested departure. (860) Defendant argued that when a defendant requests a discretionary downward departure, a sentencing court must always indicate on the record that it knows it had authority to depart, considered the defendant’s request to do so, and decided not to depart. The 3rd Circuit rejected this, and held that a sentencing court does not commit reversible error by failing to state expressly on the record that it has considered and exercised discretion when refusing a requested downward departure. The statute controlling judicial sentencing statements, 18 U.S.C. § 3553(c), does not require such a statement. U.S. v. Georgiadis, 933 F.2d 1219 (3rd Cir. 1991).
3rd Circuit holds that district court’s belief that it lacked discretion to depart renders sentence appealable. (860) The 3rd Circuit held that when a district court concludes it lacks discretion to depart from the guidelines on specified grounds, the sentence is appealable under 18 U.S.C. § 3742(a) as a misapplication of the guidelines. Such an issue is a question of law and is subject to plenary review. U.S. v. Rosen, 896 F.2d 789 (3rd Cir. 1990).
3rd Circuit holds that district court’s belief that it lacked discretion to depart renders sentence appealable. (860) The 3rd Circuit held that when a district court concludes it lacks discretion to depart from the guidelines on specified grounds, the sentence is appealable under 18 U.S.C. § 3742(a) as a misapplication of the guidelines. Such an issue is a question of law and is subject to plenary review. U.S. v. Rosen, 896 F.2d 789 (3rd Cir. 1990).
3rd Circuit rules it has no jurisdiction to hear appeal from district court’s refusal to depart for “cooperation.” (860) Defendant argued that the district court erred in refusing to depart downward when defendant had cooperated with the government and had been an important witness at trial. The 3rd Circuit rejected the argument, relying on U.S. v. Denardi, 892 F.2d 269 (3rd Cir. 1989), which held that the Court of Appeals has no jurisdiction under 18 U.S.C. § 3742(a)(2) to hear an appeal based upon a district judge’s refusal to depart from the guidelines. U.S. v. Wickstrom, 893 F.2d 30 (3rd Cir. 1989).
3rd Circuit holds that decision not to depart is not subject to appellate review. (860) The 3rd Circuit held that to the extent that the defendant was arguing that the district court abused its discretion in declining to depart downward from the guidelines, the appellate court lacked jurisdiction under 18 U.S.C. § 3742 to review the merits of the appeal. U.S. v. Denardi, 892 F.2d 269 (3rd Cir. 1989).
3rd Circuit reaffirms that discretionary refusals to depart are not appealable. (860) Defendant was sentenced to 30 years based upon the career offender provision and received an additional five years for carrying a weapon during a drug trafficking crime. Defendant argued that the district court erred in refusing to depart downward from the career offender guideline range since his predicate offenses for career offender status involved only two “small” marijuana sales. The 3rd Circuit ruled that it lacked appellate jurisdiction to review the claim pursuant to U.S. v. Denardi, 892 F.2d 269 (3rd Cir. 1989), which held discretionary refusals to depart are not appealable. U.S. v. Whyte, 892 F.2d 1170 (3rd Cir. 1989).
4th Circuit says even after Booker, it lacks authority to review district court’s refusal to depart. (860) Defendant, convicted of drug charges, moved for a downward departure under § 5K2.13 based on his diminished mental capacity. The district court recognized that defendant’s mental retardation constituted a diminished mental capacity. The court found that defendant’s impaired ability to make social judgments and his reliance on others to make decisions made him a prime target for drug dealers. The court declined to depart, because it was “unwilling to find that [defendant] does not pose a danger to society, a necessary finding for utilizing § 5K2.13 as a vehicle for a downward departure.” The Fourth Circuit held that it lacked the authority to review the sentencing court’s denial of the downward departure. This legal principle has been settled for some time, and was not disturbed by the Supreme Court’s decision in Booker. U.S. v. Brewer, 520 F.3d 367 (4th Cir. 2008).
4th Circuit says refusal to depart based on sentencing disparity not reviewable. (860) Defendants challenged the court’s refusal to depart from the guidelines to remedy the disparity between their base offense levels and that of Beisler, who had pled guilty and was sentenced to six months’ home confinement. Defendants went to trial and were sentenced to more than seven years in prison. However, disparity among co-defendants’ sentences is not a permissible ground for departure, even where the disparity results from the use of different loss figures for co-defendants. Here, the court recognized its authority to depart and entertained the defendant’s argument on this point. The court ruled, however, that there was no evidence of prosecutorial misconduct. Because the court’s refusal to depart followed its conclusion that the evidence did not support a departure, the Fourth Circuit found the issue not reviewable on appeal. U.S. v. Quinn, 359 F.3d 666 (4th Cir. 2004).
4th Circuit holds that court understood its authority to depart based on extraordinary physical impairment. (860) At sentencing, defense counsel sought a downward departure based on an extraordinary physical impairment – defendant had been diagnosed with AIDS, and his probable life expectancy was only four to five years. The government contended that the prison system could handle defendant’s illness. The district court declined to depart, and the Fourth Circuit affirmed. The district court carefully ascertained that there was no authority in this circuit requiring departure, and observed that it was “not inclined to grant Defendant’s motion.” It was clear that the court understood its authority to depart, but did not find the presence of an extraordinary factor warranting departure. Because the court was under no misperception as to its authority, its refusal to depart was not subject to appellate review. U.S. v. Carr, 271 F.3d 172 (4th Cir. 2001).
4th Circuit says Koon did not change standard for reviewing refusal to depart. (860) Defendant, a journalist, was convicted of receiving and transmitting child pornography. Defendant requested a downward departure on the grounds that he was only trading child pornography to research a story. The district court found that defendant did not demonstrate that he trafficked in child pornography solely for journalistic purposes, citing the testimony of defendant’s expert, the lack of any notes indicating that defendant was writing an article on child pornography, defendant’s failure to inform the FBI that he was trading child pornography to research a story, and defendant’s clandestine behavior. The Fourth Circuit ruled that the refusal to depart was not reviewable on appeal. The Supreme Court’s decision in Koon v. United States, 518 U.S. 81 (1996), which addressed the standard of review of a court’s decision to depart, did not address or affect review of a district court’s decision not to depart. U.S. v. Matthews, 209 F.3d 338 (4th Cir. 2000).
4th Circuit rules court was aware of discretion to depart. (860) Defendants argued that the district court erred in denying their motions for downward departure. The Fourth Circuit found that it lacked jurisdiction to consider the claim. The only circumstance in which an appellate court may review a defendant’s refusal to depart is when the district court mistakenly believed that it lacked the authority to depart. That was not the case here. At sentencing, the district court stated that it had considered and rejected the factual basis for downward departure, and concluded that defendants had not met the burden for departure. U.S. v. Edwards, 188 F.3d 230 (4th Cir. 1999).
4th Circuit will not review sentence within properly calculated guideline range. (860) Defendant argued that the sentencing judge should have been more lenient in choosing his exact term of imprisonment within the guidelines range. Defendant had an applicable range of 262-327 months; the district court sentenced defendant to 324 months. Defendant claimed that the district court failed to consider his unusual cooperation in determining his sentencing. The Fourth Circuit refused to review the matter. Defendant did not argue that the court should have departed downward for extraordinary acceptance of responsibility or that he should have received a three-level reduction. Instead, he requested that the appellate court strip the sentencing judge of his discretion to set the defendant’s sentence within the proper guidelines range. U.S. v. Pitts, 176 F.3d 239 (4th Cir. 1999).
4th Circuit says court was aware of authority to depart for charitable works. (860) Defendant contended that the district court erred in denying his motion for a downward departure based on his extraordinary good works. In support of his motion, he submitted numerous letters from different persons listing examples of benevolent acts on his part. The Fourth Circuit refused to review the matter, concluding that the district court did not erroneously believe it lacked the legal authority to depart. Section 5H1.11 provides that charitable works or public service are not ordinarily relevant to deciding whether to depart. A district court may depart based on a discouraged factor only where that factor is present to an exceptional degree. The district court said that it was not presented with any information upon which it could justify a downward departure. This statement did not show the court erroneously believed it lacked authority to depart. U.S. v. Aramony, 166 F.3d 655 (4th Cir. 1999).
4th Circuit cannot review court’s decision not to depart. (860) Defendants challenged the court’s refusal to grant them a downward departure. The Fourth Circuit noted that it lacked authority to review such a refusal when it rests upon a determination that a departure is not warranted. The district court’s decision not to depart rested on its determination that a downward departure was not warranted with respect to either defendant. Accordingly, appellate review was precluded. U.S. v. Wilkinson, 137 F.3d 214 (4th Cir. 1998).
4th Circuit rules refusal to depart downward is not appealable. (860) Defendant argued that the district court erred in failing to depart downward based on a single act of aberrant behavior. In sentencing defendant, the court recognized that it had the authority to depart downward but it refused, explaining that the circumstances did not warrant a departure. The Fourth Circuit ruled that the refusal to depart downward was not appealable. U.S. v. Burgos, 94 F.3d 849 (4th Cir. 1996) (en banc).
4th Circuit does not review refusal to depart for deportable alien. (860) Defendant contended that the district court should have departed downward based on his status as a deportable alien. The Fourth Circuit refused to review the matter. The district court considered the merits of departing, comparing the cost of imprisoning defendant for life and the cost of deporting him. However, because defendant had illegally entered the country at will in the past, the court concluded that it was compelled to impose a life sentence instead of departing downward. Since the court clearly recognized its ability to depart downward, the decision was not reviewable. U.S. v. Hyppolite, 65 F.3d 1151 (4th Cir. 1995).
4th Circuit holds that court was aware of authority to make criminal history departure. (860) Defendant argued that the district court refused to make a criminal history departure because it believed that it lacked authority to do so. The Fourth Circuit found that the refusal to depart was not reviewable since the district court recognized its authority to depart. Although the district court expressed skepticism of this ground as a basis for departure, it specifically found that, assuming it had authority to depart, it would not do so, since there was nothing in defendant’s criminal history to indicate he was unlikely to commit future crimes. U.S. v. Dorsey, 61 F.3d 260 (4th Cir. 1995).
4th Circuit clarifies that it has jurisdiction to review failure to grant sentence adjustment. (860) Defendant appealed the district court’s refusal to grant her a minor role reduction under § 3B1.2. In reviewing the issue, the Fourth Circuit noted that there was some confusion as to whether U.S. v. Bayerle, 898 F.2d 28 (4th Cir. 1990) bars a court from reviewing the district court’s decision not to apply a sentence adjustment. Bayerle merely states that an appellate court does not generally possess the jurisdiction to review a district court’s refusal to depart downward from the guidelines. Sentence adjustments and downward departures are distinct concepts that are to be treated separately even within the same case. Bayerle does not apply to sentence adjustments. U.S. v. Reavis, 48 F.3d 763 (4th Cir. 1995).
4th Circuit holds that refusal to depart for aberrant behavior is not reviewable. (860) Defendant argued that his actions in threatening an IRS office were a single act of aberrant behavior. The 4th Circuit held that the court’s refusal to depart was not reviewable since the judge clearly realized his authority to depart. The judge made a specific finding that defendant’s conduct was not a single act of aberrant behavior, noting several instances in which defendant had sent threatening communications to the IRS. U.S. v. Darby, 37 F.3d 1059 (4th Cir. 1994).
4th Circuit does not review discretionary refusal to depart. (860) Exercising its discretion, the district court denied defendant’s motion for a downward departure. Because the court exercised its discretion in accordance with the law, the 4th Circuit refused to review it. U.S. v. Smith, 29 F.3d 914 (4th Cir. 1994).
4th Circuit refuses to review failure to grant additional downward departures. (860) Defendant received a substantial downward departure from a mandatory minimum based on his substantial assistance under § 5K1.1. He argued that the district court erred in refusing to make further downward departures. The 4th Circuit held that a district court’s refusal to depart downward is not appealable by a defendant. The fact that the district court departed downward on one ground did not affect the court’s ability to review the refusal to depart on other grounds. U.S. v. Patterson, 23 F.3d 1239 (7th Cir. 1994).
4th Circuit holds that it cannot review sentence within properly calculated guideline range. (860) The district court sentenced defendant at the top of his guideline range because defendant failed to aid police in the apprehension of a co-conspirator. Defendant argued that the district judge based this determination on insufficient evidence. The 4th Circuit held that it lacked jurisdiction to consider defendant’s claim. Under 18 U.S.C. § 3742(a), a criminal defendant may not seek review of a sentencing court’s discretion in setting a sentence anywhere within a properly calculated sentencing range. U.S. v. Penn, 17 F.3d 70 (4th Cir. 1994).
4th Circuit rules guidelines adequately consider a defendant’s age and health problems. (860) Defendant challenged the district court’s refusal to depart under section 5H1.1 and 5H1.4 based on his age and health problems. The 4th Circuit ruled that it could not review the decision. It was clear that the district judge was aware that she could depart but concluded that defendant’s age and health problems were not extraordinary enough to warrant such action. The court also rejected defendant’s claim that age and physical condition were not adequately taken into consideration by the sentencing commission. The court refused to “rewrite” the guidelines, simply because it might be at odds with some portion of the sentencing act’s legislative history. Because the guidelines were submitted to Congress and subject to its modification, Congress could have substituted its own guidelines, if it had felt a particular factor was not adequately considered. It did not do so. U.S. v. Penn, 17 F.3d 70 (4th Cir. 1994).
4th Circuit concludes that district court was aware of its ability to depart downward. (860) The 4th Circuit upheld the district court’s failure to depart downward. The judge’s statement that “I don’t know what I can do” about the high sentence required by the guidelines did not indicate the court was unaware of its ability to depart downward. It was obvious that the judge knew he had the ability to depart downward; otherwise he would not have asked for motions to that effect. His comment demonstrated only that he realized he did not have the authority to depart from the guidelines when neither party presented any mitigating or aggravating circumstances. U.S. v. Lewis, 10 F.3d 1086 (4th Cir. 1993).
4th Circuit concludes that district court rejected departure on the merits. (860) The 4th Circuit found that the district court refused a downward departure based on the defendant’s lack of youthful guidance because it felt that no departure was warranted, and not, as defendant contended, because it believed it had no authority to depart on that basis. Thus, the court’s discretionary refusal to depart was not reviewable on appeal. U.S. v. Fonville, 5 F.3d 781 (4th Cir. 1993).
4th Circuit does not review refusal to depart based on imperfect defense. (860) The 4th Circuit refused to review the district court’s failure to depart downward based on defendant’s imperfect defense. A refusal to depart is unreviewable, unless the district court mistakenly believes it lacks discretion to depart. The district court denied defendant’s motion on the grounds that the defense was not borne out at trial, not because it lacked authority. U.S. v. Schallom, 998 F.2d 196 (4th Cir. 1993).
4th Circuit refuses to review failure to make downward criminal history departure. (860) Defendant claimed that the district court should have departed downward because his criminal history category overstated the seriousness of his past criminal conduct. The 4th Circuit refused to review this issue, since a refusal to depart downward based on overrepresentation of criminal history is not appealable. U.S. v. Hall, 977 F.2d 861 (4th Cir. 1992).
4th Circuit refuses to review failure to depart downward despite large restitution. (860) Defendant challenged the district court’s failure to depart downward in light of his alleged substantial restitution to one of his defrauded investors. Defendant claimed that during the year preceding his indictment, he made restitution to a major investor in his business in the amount of $7.4 million. The 4th Circuit affirmed that it lacked jurisdiction to review the refusal to depart. When the record is silent with respect to a judge’s refusal to depart downward, the appellate court cannot infer that the judge believed he lacked authority to depart. Instead, the appellate court must find the judge merely exercised his discretion under the guidelines not to depart. U.S. v. Bailey, 975 F.2d 1028 (4th Cir. 1992), abrogated on other grounds by U.S. v. Williams, 81 F.3d 1321 (4th Cir. 1996).
4th Circuit holds that factual finding underlying refusal to depart is not subject to review. (860) Defendant requested a downward departure based upon diminished capacity pursuant to section 5K2.13. The district court refused, concluding that any diminished capacity was the result of voluntary drug use. Based on U.S. v. McCrary, 887 F.2d 485 (4th Cir. 1989), defendant argued that the appellate court had jurisdiction to review a refusal to depart where that refusal is based upon a clearly erroneous finding of fact. The 4th Circuit rejected the argument, stating that it had no jurisdiction to review a refusal to depart downward. U.S. v. Bayerle, 898 F.2d 28 (4th Cir. 1989) makes it clear that the only circumstance in which review is available is when the district court mistakenly believes that it lacks the authority to depart. To the extent that McCrary stands for the proposition that the factual findings underlying a district court’s refusal to depart is subject to review, that case has been effectively overruled by Bayerle. U.S. v. Underwood, 970 F.2d 1336 (4th Cir. 1992).
4th Circuit refuses to review failure to depart downward despite government motion. (860) Defendant argued that the district court erred in refusing to depart downward based upon his substantial assistance after the government moved for such a departure. The 4th Circuit held that the district court was aware of its ability to depart based upon his assistance, but chose not to follow the recommendation of the government. Accordingly, the decision was not reviewable by the court of appeals. U.S. v. Graham, 946 F.2d 19 (4th Cir. 1991).
4th Circuit remands where unclear whether judge believed he lacked authority to depart downward. (860) Defendant argued that the sentencing judge did not consider defendant’s tragic personal background and family history as grounds for downward departure because the judge mistakenly believed the guidelines prohibited downward departures on these grounds. The 4th Circuit found the record unclear and remanded the case. The sentencing judge had stated that defendant’s background was “clearly relevant in criminal sentencing prior to the sentencing reform act, but such policy on departures under the Act destroys the whole purpose of the Act.” U.S. v. Deigert, 916 F.2d 916 (4th Cir. 1990).
4th Circuit determines that unarmed robbery is a crime of violence for career offender purposes. (860) Defendant contended that his unarmed robbery of a bank was not a crime of violence for career offender purposes. The 4th Circuit rejected this argument. Defendant had clearly threatened the use of force when he handed the bank teller a note that stated “Give me $500 or I will shoot you.” Moreover, application note 1 to guideline § 4B1.2 makes its clear that robbery is a crime of violence regardless of the presence of a weapon. In addition, defendant was convicted of violating the unarmed bank robbery statute, which requires property to be taken “by force and violence” or “by intimidation.” The 4th Circuit also refused to consider defendant’s argument that he was entitled to a downward departure because he was unarmed during the robbery, since a failure to depart downward is not appealable. U.S. v. Davis, 915 F.2d 132 (4th Cir. 1990).
4th Circuit finds that district court’s refusal to depart based on defendant’s illness was not reviewable on appeal. (860) While defendant was incarcerated, he was diagnosed with cancer. The district court refused to depart downward, finding defendant’s condition an insufficient basis for a departure. The 4th Circuit rejected defendant’s argument that the district court’s refusal to depart was based on its mistaken assumption that it lacked authority to depart based upon defendant’s illness. Rather, the district court had carefully considered the situation and found that based on all the facts, departure was not warranted. U.S. v. Apple, 915 F.2d 899 (4th Cir. 1990).
4th Circuit holds that refusal to depart downward is not appealable by defendant. (860) Defendant appealed his sentence, arguing that a downward departure should have been given for diminished capacity. The 4th Circuit disagreed, holding that a refusal to depart downward cannot be appealed unless the district court mistakenly believed it lacked authority to depart. Since the sentencing court knew it could depart and refused to do so, the sentence was proper. U.S. v. Bayerle, 898 F.2d 28 (4th Cir. 1990).
4th Circuit holds that district court’s discretion to depart will not be reviewed for purposes of increasing departure. (860) A drug defendant received a 67 month downward departure but argued on appeal that it should have been greater. The 4th Circuit affirmed the sentence. The main reason for the departure was proper: to “remedy unwanted sentence disparities among defendant’s with similar records who have been found guilty of similar conduct.” (See 18 U.S.C. § 3553(a)(6).) However, the district court was free to conclude that further departure was not warranted given (1) the significantly larger quantity of LSD sold by the defendant compared to that sold by the co-defendants and (2) the defendant’s superior position in the organization. The defendant’s cooperation with the government was already given ample consideration. Additionally, family ties and “unstable upbringing” simply are not proper grounds for departure. Finally, the comparatively low street value of the drugs the defendant attempted to sell are not to be considered in making departures; the guidelines already definitively speak on issues of drug quantity and quality. U.S. v. Daly, 883 F.2d 313 (4th Cir. 1989).
5th Circuit says sentence within proper guideline range was not plain error. (860) The district court erroneously refused to grant defendant a one point acceptance of responsibility reduction. With the reduction, his sentence range would have been 18 to 24 months. The 21-month sentence he received fell within this new range. The error was not harmless because there was no evidence or argument that the court would have imposed the same sentence regardless of the sentencing range. However, defendant’s objection to the PSR’s recommendations was untimely, not raising it until the day before his sentencing hearing, which was well beyond the prescribed 14-day period. Therefore, the Fifth Circuit reviewed defendant’s challenge to the denial of the one-point reduction only for plain error. Plain error review differs from the harmless error analysis because the question is not whether the district court would have chosen the same sentence absent the error, but whether it could have done so. Because the sentence imposed by the district court was within the proper sentencing range and could be reinstated on remand, the panel refused to correct the court’s error. U.S. v. Wheeler, 322 F.3d 823 (5th Cir. 2003).
5th Circuit cannot review failure to depart where court understood departure authority. (860) The record did not reveal that the district court mistakenly believed that it could not depart downward on defendant’s sentence. Rather, the record reflected that the district court denied defendant’s requested downward departure after hearing extensive argument from his counsel and considering not only whether there were specific guideline provisions that would support the defendant’s request, but also whether this was an extraordinary case that would fit under the general provisions of § 5K2.0. The court also considered that defendant’s conduct resulted in the victim’s death. Accordingly, the Fifth Circuit held that it lacked jurisdiction to review the court’s refusal to depart. U.S. v. Lambright, 320 F.3d 517 (5th Cir. 2003).
5th Circuit cannot review refusal to depart from money laundering guidelines. (860) Defendant was convicted of crop insurance fraud, money laundering, and conversion of crops pledged as collateral for a loan. Pursuant to § 3D1.3(b), the trial court used the offense guideline that produced the highest offense level to compute the applicable guideline range. Therefore, the court used an adjusted offense level of 20, the level used for money laundering. Defendant argued that his sentence should have been based on § 2F1.1, the fraud guideline, because his money laundering was outside the “heartland” of the money laundering guidelines. The Fifth Circuit found no error. The trial court properly grouped together the six counts on which defendant was convicted. A court can choose to depart downward where the particular conduct falls outside the heartland of offenses considered by the Sentencing Commission. However, a court’s refusal to grant a downward departure may only be reviewed “if the refusal was based on a violation of the law.” Because defendant had not shown that the trial court mistakenly applied the Sentencing Guidelines, its decision could not be reviewed on appeal. U.S. v. McClatchy, 249 F.3d 348 (5th Cir. 2001).
5th Circuit holds that refusal to apply different guideline was non-reviewable refusal to depart. (860) Defendant argued that the fraud was the essence of her offense, and therefore the district court erred in sentencing her under the money laundering guideline, rather than the fraud guideline. The Fifth Circuit found no error in the district court’s decision to apply § 2S1.2 to defendant’s violation of 18 U.S.C. § 1957. Appendix A of the guidelines indicates that § 2S1.2 corresponds with violations of 18 U.S.C. § 1957. “[W]here a court finds that the facts in a section 1957 case are sufficiently atypical as to warrant the application of a lower guideline range, its decision constitutes a downward departure. The court in such an instance does not misinterpret the Guidelines by failing to apply section 2S1.2, it exercises its discretion under the facts of that case.” The district court’s refusal to apply a different guideline constituted a refusal to grant a downward departure, a decision which was not reviewable. U.S. v. Loe, 248 F.3d 449 (5th Cir. 2001).
5th Circuit affirms where court found defendant’s case fell within money laundering heartland. (860) Defendant was convicted of fraud and money laundering charges in connection with his operation of an advance fee scheme. Because defendant was convicted of closely related offenses, the counts were grouped together and assigned a single offense level. See USSG §§ 3D1.1, 3D1.2 The grouping rules led to the court’s use of the money laundering guideline, § 2S1.2. Defendant argued that the district court should have sentencing him under the fraud guidelines, rather than the money laundering guidelines. However, defendant did not argue that the court misapplied the grouping rules, but rather that his case fell outside the heartland of money-laundering offenses covered by § 2S1.2. Thus, his argument actually was that the district court erred in refusing to depart from the money laundering guideline. The Fifth Circuit held that it lacked authority to review the district court’s refusal to depart, since nothing in the record suggested that the court based its decision upon the erroneous belief that it lacked the authority to depart. At sentencing, the judge evaluated the facts of the case, determined that they fell within the heartland, and therefore declined to depart. Thus, its decision not to depart was unreviewable. U.S. v. Davis, 226 F.3d 346 (5th Cir. 2000).
5th Circuit rejects departure for disclosure of crime, status as police officer, or mental condition. (860) Defendant argued for the first time on appeal that the district court sentenced him under the mistaken belief that it could not depart from the guidelines. He claimed the court had authority to depart (1) under § 5K2.16 for his voluntary disclosure of his first robbery, (2) under Koon v. United States, 518 U.S. 81 (1996), because he would be subject to abuse in prison as a former police officer, (3) under § 5K2.13 and § 5K2.0 for his mental condition (a gambling addiction and manic depressive mood swings). The Fifth Circuit found no error, let alone plain error, in the district court’s failure to depart. Defendant did not qualify under § 5K2.16 for the voluntary disclosure of his first robbery, since authorities were already “on to” him in connection with this robbery when he committed the second robbery. Defendant’s status as a former police officer was more an aggravating circumstance than a mitigating one. Finally, defendant did not qualify for a § 5K2.13 diminished capacity departure because his armed bank robberies were not “non-violent.” The guidelines have already taken into consideration a defendant’s mental capacity with § 5K2.13, and thus § 5K2.0 was inapplicable to defendant’s claim that his mental capacity entitled him to a downward departure. See U.S. v. Rosen, 896 F.2d 789 (3d Cir. 1990). U.S. v. Thames, 214 F.3d 608 (5th Cir. 2000).
5th Circuit finds error in departure methodology was harmless. (860) The district court originally departed under § 5K1.1 from a guideline range of 120-135 months to a sentence of 108 months. At resentencing after a successful appeal, the district court found defendant’s guideline range was 70-87 months. The court noted that its previous § 5K1.1 departure had been 10% of the “guideline sentence,” or about one offense level. Intending to duplicate that departure, the court reduced defendant’s offense level by one, producing a guideline range of 63-78 months. The court imposed a 72-month sentence. Defendant filed a Rule 35(c) motion to correct his sentence, arguing that the new 72-month sentence was not a 10% departure from the minimum guideline sentence of 70 months, and in fact, fell within the 70-87 month guideline range. The Fifth Circuit agreed, but found the error harmless. The district court’s methodology of reducing defendant’s offense level was flawed because it did not ensure that the resulting sentence was a departure from the guideline range. The sentence imposed was not consistent with the court’s statement that it was granting the government’s § 5K1.1 motion. However, the error was harmless because the court was aware of its authority to depart, imposed the sentence it saw fit, and had the discretion to impose the sentence it actually imposed. U.S. v. Hashimoto, 193 F.3d 840 (5th Cir. 1999).
5th Circuit will not review refusal to depart for sentencing entrapment. (860) On multiple occasions, defendant sold heroin to an undercover agent. He claimed that the government should have arrested him after the first transaction, thus cutting short his criminal liability. He argued that the district court erred in refusing to depart downward for sentencing entrapment. The Fifth Circuit held that it lacked jurisdiction to address this argument. When a defendant makes a motion for a downward departure based on the defense of sentence entrapment, appellate courts lack jurisdiction to review the district court’s disposition of the motion. U.S. v. Ogbonna, 184 F.3d 447 (5th Cir. 1999).
5th Circuit bases sentence on heroin defendant actually carried rather than cocaine he thought he carried. (860) Defendant was convicted of possessing and importing a controlled substance with intent to distribute. He believed that he was carrying cocaine, when in fact he was carrying heroin. The Fifth Circuit held that it did not violate due process to base defendant’s sentence on the heroin he actually carried, even though he believed he was carrying cocaine. Defendant clearly had the mens rea required for guilt under both the possession and importation statute – he knew he possessed a “controlled substance.” Due process does not require a mens rea be imported into sentencing. Congress had a rational basis for “exposing a drug trafficker to liability for the full consequences, both expected and unexpected, of his own unlawful behavior.” The district court’s failure to depart based on defendant’s mistaken belief that he was carrying cocaine was not reviewable. There was no indication in the record that the district court erroneously believed that it lacked authority to depart. U.S. v. Valencia-Gonzales, 172 F.3d 344 (5th Cir. 1999).
5th Circuit lacks jurisdiction to review refusal to depart based on the facts of the case. (860) At sentencing, defendant asked the district court to depart downward based on his “cultural assimilation” under § 5H1.6. Defendant had resided in the U.S. for nearly 20 years, had married a U.S. citizen, and had a U.S. citizen child. The district court said that it did “not believe that the Defendant’s situation serves as a basis for downward departure; and accordingly that objection is overruled.” Because the record showed that the district court refused to depart downward on the facts of the case, the Fifth Circuit held that it lacked jurisdiction to review the decision. U.S. v. Reyes-Nava, 169 F.3d 278 (5th Cir. 1999).
5th Circuit refuses to review where no evidence court misunderstood ability to depart. (860) Defendant complained that the district court abused its discretion and denied him due process when it denied his motion for a downward departure under § 5K2.0. The Fifth Circuit ruled that in order to review a refusal to depart, something in the record must indicate that the district court erroneously believed that it lacked authority to depart. In this case, the district court stated at sentencing that it could depart, but that it was refusing defendant’s request for departure. Therefore, the Fifth Circuit dismissed this issue for lack of jurisdiction. U.S. v. Landerman, 167 F.3d 895 (5th Cir. 1999).
5th Circuit cannot review because district court was aware of authority to depart. (860) Defendant was convicted of child pornography counts and attempted sexual exploitation of a minor. He argued on appeal that the district court erred in refusing to grant his request for a downward departure based upon his post-offense rehabilitation efforts and his diminished mental capacity. The Fifth Circuit held that it lacked authority to review since the district court indicated that it was aware of its authority to depart, and simply declined to do so. The court denied defendant’s request for a downward departure based upon his mental capacity by saying “I also do not grant a downward departure for diminished mental capacity.” In addition, the PSR specifically recognized diminished mental capacity as a valid ground for departure. In denying defendant’s request for a departure based upon his post-offense rehabilitation, the court stated “I don’t find that what you did would allow for a downward departure and so I do not grant a downward departure for remorse and rehabilitative efforts.” This statement indicated the court was aware of its authority to depart on this ground. U.S. v. Crow, 164 F.3d 229 (5th Cir. 1999).
5th Circuit has no jurisdiction to review refusal to depart for government manipulation. (860) Defendant, a church pastor, was caught in a government sting operation after agreeing to launder what he believed to be drug money to help his church through some financial difficulties. He argued that he should have received a downward departure because the government intentionally manipulated his sentence by inducing him to launder three “test” amounts ($100,000, $100,000 and $150,000) as a precondition to receiving the $10 million that he was really seeking. These amounts mirror the sentence increases in § 2S1.1(b)(2). The Fifth Circuit held that it lacked jurisdiction to review the claim. Defendant did not contend that the denial of the departure was based on the court’s mistaken conclusion that the guidelines did not permit such departure. U.S. v. Brace, 145 F.3d 247 (5th Cir. 1998).
5th Circuit has no jurisdiction to review refusal to depart. (860) Defendant pled guilty to unlawful possession of a short barrel shotgun in violation of 26 U.S.C. § 5861(d). At sentencing, the court stated that it did not consider defendant to be a menace, but that it had “no choice” with respect to defendant’s sentence because the government had not filed a motion requesting departure. Defendant contended that the district court failed to recognize it had the authority to depart downward. The Fifth Circuit disagreed. The court’s remarks were not directed to any particular objection or argument by defendant. With respect to defendant’s argument that his case fell outside the heartland, the district court expressly found that there was no reason to depart from the sentence called for by the guidelines since the facts were of a kind contemplated by the Sentencing Commission. Appellate courts have no jurisdiction to review a district court’s determination that a departure was not warranted. U.S. v. Carmouche, 138 F.3d 1014 (5th Cir. 1998).
5th Circuit cannot review where judge found facts did not warrant departure. (860) Defendant moved for a downward departure under § 5K2.0 because the government did not make a § 5K1.1 motion based on defendant’s cooperation in the investigation and prosecution of other drug traffickers. The cases involving the others had not been resolved, and the government refused to move for a departure until they were. The government planned to later move under Rule 35 for a sentence reduction. The Fifth Circuit held that it lacked jurisdiction to review the refusal to depart. The court specifically found that there were no factors not taken into consideration by the guidelines to warrant a departure, and was satisfied that any assistance defendant had rendered or might render would be adequately accounted for by the government’s Rule 35 motion. The court found that the facts did not warrant a departure. Such a decision was not reviewable. U.S. v. Lugman, 130 F.3d 113 (5th Cir. 1997).
5th Circuit rejects claim that judge was not aware of authority to depart. (860) Defendant argued that the district judge mistakenly believed he had no authority to depart below the guidelines range. The Fifth Circuit found the “experienced” district judge “surely” was aware of his power to depart from the guidelines. The comments cited by defendant were in response to a request by defendant’s mother to be allowed to go home with her. U.S. v. Johnston, 127 F.3d 380 (5th Cir. 1997).
5th Circuit has no jurisdiction to review refusal to depart based on pregnancy complications. (860) Defendant was convicted of mail and wire fraud for engaging in a nationwide telemarketing scheme. During defendant’s first trial, which ended in mistrial, defendant was pregnant. She went into premature labor and the baby died two hours after birth. She argued that the district court erred in failing to depart downward based on her history of pregnancy complications. The Fifth Circuit refused to review the matter. The trial court understood it had the authority to depart to account for circumstances not adequately taken into consideration by the guidelines, but it found defendant’s pregnancy complications insufficient to warrant departure. Thus, the appellate court lacked jurisdiction to review the trial court’s sentencing decision. U.S. v. Palmer, 122 F.3d 215 (5th Cir. 1997).
5th Circuit refuses to review failure to make criminal history departure. (860) Defendants argued that the district court should have departed downward because the criminal history category assigned to them over-represented the seriousness of their criminal history. The Fifth Circuit held that it did not have jurisdiction to review the court’s refusal to depart. The record reflected that the district court exercised its discretion in refusing to depart. The district court did not refuse to depart in violation of law or because of a mistaken application of the guidelines, nor did it do so out of a mistaken belief that it lacked the power to do so. U.S. v. Morgan, 117 F.3d 849 (5th Cir. 1997).
5th Circuit says court’s statement did not indicate it misunderstood its departure ability. (860) Defendant argued that the district court mistakenly believed that it lacked authority to depart downward based on her health problems and family responsibility. The Fifth Circuit found that the district court’s comments showed only that it believed that the penalty for defendant’s crack offense was too harsh. The comments did not show that the district court believed that a departure for health and family reasons was warranted but not permitted. Moreover, the specifics of defendant’s claim (52 years old, heart problems, high blood pressure and responsibility for elderly mother) did not warrant a downward departure. U.S. v. McKinney, 53 F.3d 664 (5th Cir. 1995).
5th Circuit lacks jurisdiction to review denial of government’s §5K1.1 motion. (860) Defendant argued that the district court erred in denying the government’s § 5K1.1 motion for a substantial assistance departure. The Fifth Circuit held that it lacked jurisdiction over the appeal. Defendant’s challenge to his sentence involved only dissatisfaction with the court’s refusal to grant a downward departure; it did not involve a legal error or misapplication of the guidelines. Because claims challenging the discretionary denial of downward departures do not fall within any of the categories listed in 18 U.S.C. § 3742(a), such claims are not subject to appellate review and should be dismissed for lack of jurisdiction. U.S. v. DiMarco, 46 F.3d 476 (5th Cir. 1995).
5th Circuit holds it lacks jurisdiction to review Parole Commission’s refusal to depart for transferred prisoner. (860) Defendant was convicted of murder in Mexico and transferred to the U.S. The U.S. Parole Commission determined that the applicable guideline range was 168-210 months, and that a downward departure was unwarranted. The Commission set a release date of 180 months from the date of his arrest. The 5th Circuit held that it lacked authority to review the Parole Commission’s refusal to depart downward from the sentencing guidelines. Under 18 U.S.C. § 4106A(b)(1)(A), the Parole Commission must determine a release date and a period of supervised release as though defendant were convicted in district court of a similar offense. Section 4106A(b) (2)(B) directs an appellate court to dispose of the appeal in accordance with 18 U.S.C. § 3742. Accordingly, since the release date was within defendant’s guideline range, the refusal to depart was not reviewable. Navarrete v. U.S. Parole Commission, 34 F.3d 316 (5th Cir. 1994).
5th Circuit says substantial assistance motion did not entitle defendant to downward departure. (860) Defendant argued that he supplied substantial assistance, as evidenced by the government’s § 5K1.1 motion, and therefore should have received a downward departure. The 5th Circuit held that the government’s § 5K1.1 motion did not automatically entitle defendant to a downward departure. The decision to grant a substantial assistance departure is committed to the sound discretion of the sentencing court. U.S. v. Miro, 29 F.3d 194 (5th Cir. 1994).
5th Circuit says firearm possession was not aberrant act. (860) Defendant was convicted of being a felon in possession of a firearm. He claimed that he possessed the firearm solely as collateral for a loan, and that he should have received a downward departure for a single act of aberrant behavior. The 5th Circuit ruled that defendant’s possession of the firearm was not the type of aberrant, abnormal or exceptional behavior that would warrant a departure. Even if defendant possessed the gun only as collateral, it would be a conscious and deliberate act, not an aberrant or exceptional one. A refusal to depart is not appealable unless the refusal is in violation of law. This appeal was frivolous. U.S. v. Burleson, 22 F.3d 93 (5th Cir. 1994).
5th Circuit refuses to review refusal to depart despite silence after request for departure. (860) At sentencing, defendant asked the court to depart downward to bring his sentence in line with the sentence he received for another offense. The court said nothing, and did not depart downward. Defendant argued that the district court mistakenly believed that it did not have the power to depart. The 5th Circuit rejected this contention. At the beginning of the sentencing hearing, the court commented that it realized counsel was making an argument to support a downward departure. The court then heard those arguments, plus those of the government for an upward departure, before sentencing defendant within the guideline range. A district court’s refusal to depart is not reviewable, unless the refusal was in violation of law. U.S. v. Aggarwal, 17 F.3d 737 (5th Cir. 1994).
5th Circuit holds that defendant waived right to challenge consideration of ex parte information. (860) The government submitted ex parte to the district court the letters upon which its Departure Committee relied when deciding not to file a section 5K1.1 departure motion. The 5th Circuit held that defendant waived any right to review the letters when he failed to petition the district court for access to the letters prior to sentencing. Defendant did not ask the court to order production of the letters until after he had been sentenced. U.S. v. Wilder, 15 F.3d 1292 (5th Cir. 1994).
5th Circuit upholds 288-month sentence mandated by armed career criminal status. (860) Defendant was convicted of being a felon in possession of a firearm. He challenged his 288-month sentence, contending that he should have been given a downward departure. The 5th Circuit affirmed. A district court’s refusal to depart is reviewed only for an error of law or a constitutional defect, and there was none here. The severity of defendant’s sentence was a result of his three prior violent felonies. They required a 15-year mandatory minimum sentence under 18 U.S.C. Section 924(e) and placed him at offense level 33 under section 4B1.4. Sentence enhancement passes equal protection and due process scrutiny. U.S. v. Prudhome, 13 F.3d 147 (5th Cir. 1994).
5th Circuit says that refusal to depart is not an abuse of discretion. (860) Defendant argued that the district court erred in not departing downward since all of his prior crimes occurred in 1977, and if he had committed the instant offense just a few months later, he would have been in criminal history category I or II rather than V. The 5th Circuit found that the district court did not abuse its discretion in refusing to grant the downward departure. All of defendant’s prior offenses were felonies, and included theft of a car, the same type of offense as the instant offense. U.S. v. Cain, 10 F.3d 261 (5th Cir. 1993).
5th Circuit concludes that alien’s deportation is not a basis for downward departure. (860) Defendant contended that he should have received a lower sentence because he was an alien under an order of deportation, and thus ineligible for release to home custody or a half-way house as a U.S. citizen might be. The 5th Circuit affirmed his sentence. To the extent defendant claimed his sentence within the guideline range was too harsh due to his alien status, the court declined to consider the argument. To the extent his claim was that the district court should have departed downward due to his alien status, the court concluded that this would not be an inappropriate ground for departure. U.S. v. Nnanna, 7 F.3d 420 (5th Cir. 1993).
5th Circuit rejects remote convictions as possible ground for departure. (860) Defendant argued that the district court should have departed downward because it used remote convictions to increase his criminal history score. The 5th Circuit found that because the guidelines adequately take into account the remoteness of prior convictions considered for determining a defendant’s criminal history score, a downward departure on this ground would be inappropriate. Moreover, the appellate court would not review a refusal to depart absent a violation of law. U.S. v. Sparks, 2 F.3d 574 (5th Cir. 1993).
5th Circuit rejects possible §5K2.16 departure where discovery of defendant’s involvement in other crimes was likely. (860) The 5th Circuit affirmed the district court’s refusal to depart downward under §5K2.16 for voluntary disclosure of the offense prior to its discovery by the authorities. First, such a decision was not reviewable on appeal unless the court mistakenly believed it lacked authority to depart. Although the court did not state its reasons for denying the departure, there was no evidence the court was not aware of its discretion. Its decision to sentence defendant at the top of the guideline range showed that it did not believe defendant’s actions in confessing his involvement in other crimes warranted a departure. Second, departure under §5K2.16 was not available where, as here, discovery of defendant’s involvement in the other crimes was “likely.” U.S. v. Adams, 996 F.2d 75 (5th Cir. 1993).
5th Circuit refuses to review failure to depart based on unusual family hardship. (860) The 5th Circuit refused to review the district court’s refusal to depart based on defendant’s unusual family hardship. Even if the district court erroneously relied upon section 5H1.10, the court also made an independent finding that defendant’s family situation was not so extraordinary as to require a departure downward under the general rule. Because the district court’s refusal to make an exception from the guidelines’ policy and depart downward was not a violation of the law, the sentence would not be disturbed. U.S. v. Carr, 979 F.2d 51 (5th Cir. 1992).
5th Circuit finds that district court was aware of its authority to depart downward. (860) Defendant argued that the district court erroneously believed that it lacked authority to depart downward. This was based upon the district court’s comment at sentencing that it regretted imposing the same sentence on two defendants when one defendant was less culpable. The 5th Circuit affirmed the failure to depart downward. The district court did recognize its ability to depart, but found no facts upon which to base such a departure. U.S. v. Jackson, 978 F.2d 903 (5th Cir. 1992).
5th Circuit rules district court exercised discretion in refusing to depart based upon drug purity. (860) The district court refused to depart downward based upon the low purity of the methamphetamine mixture in defendant’s possession. The 5th Circuit rejected defendant’s claim that the district court mistakenly believed it lacked authority to depart from the guidelines. The district court stated that it did not think that this was a case warranting a downward departure. This comment suggested that the district court chose not to depart from the guidelines because it did not think the circumstances warranted a departure, not that it believed its hands were tied. U.S. v. McKnight, 953 F.2d 898 (5th Cir. 1992).
5th Circuit holds district court was aware of its ability to depart for diminished capacity. (860) The 5th Circuit refused to review the district court’s refusal to depart based upon defendant’s diminished capacity, ruling that the court was aware of its authority to depart. In addressing defendant’s request for the downward departure, the court reviewed his psychiatric report and noted that it was inconclusive as to any clinical disorders. The court also referred to the probation officer’s report that defendant’s repeated reference to his illiteracy was motivated by a desire to avoid accountability for his behavior. The court’s comments indicated that it was not inclined to find as a factual matter that defendant was suffering from a significantly reduced mental capacity. U.S. v. Keller, 947 F.2d 739 (5th Cir. 1991).
5th Circuit affirms sentence at top of guideline range. (860) Defendant, a university student writing his doctoral dissertation, pled guilty to interstate transportation of stolen goods in connection with his theft of over 400 library books. His applicable guideline range was two to eight months, and the district court sentenced him at the top of the guideline range to eight months. Defendant contended that the district court should have sentenced him at the lower end of the range, or granted a downward departure, based on aspects of his character, background and mental/emotional condition. The 5th Circuit affirmed the sentence, finding that the district court’s decision to sentence at the top of the guideline range, as well as the decision not to depart downward, were both within that court’s discretion. Defendant’s argument concerning the weight to be given to his character, background and emotional condition were not grounds for error. U.S. v. Matovsky, 935 F.2d 719 (5th Cir. 1991).
5th Circuit holds failure to depart downward not erroneous absent violation of law. (860) Defendant argued that the district court erred in failing to grant a downward departure but did not suggest any law was violated by the failure to depart. Since a lawful sentence was imposed, there was no error. U.S. v. Pierce, 893 F.2d 669 (5th Cir. 1990).
5th Circuit holds failure to depart downward not erroneous absent violation of law. (860) Defendant argued that the district court erred in failing to grant a downward departure but did not suggest any law was violated by the failure to depart. Since a lawful sentence was imposed, there was no error. U.S. v. Pierce, 893 F.2d 669 (5th Cir. 1990).
5th Circuit rules refusal to depart will be upheld unless the refusal violates the law. (860) Defendant claimed that the trial court should have departed from the guidelines as permitted by Application Note 1 of § 2D1.4 because the conspiracy was incapable of producing the amount of drugs under negotiation. However, a sentencing court’s refusal to depart from the guidelines will be upheld unless the refusal was in violation of law. No law was violated here, so the refusal was proper. U.S. v. Thomas, 870 F.2d 174 (5th Cir. 1989).
5th Circuit holds refusal to depart from guideline range is not improper when correct sentence is imposed. (860) In unrelated cases, three drug couriers claimed they were erroneously denied downward departures. One claimed that he was so entitled because the Commission had not adequately considered his lack of knowledge as to the exact nature of the contraband. Another failed to state any facts whatsoever. The third claimed that he had provided substantial assistance to the authorities. However, all were sentenced to terms which were properly calculated under the guidelines. The 5th Circuit affirmed the sentences on the grounds that none of the defendant’s had identified any laws which were violated by the refusal of the District Court to depart from the proper guidelines range. A refusal to depart from the guidelines “provides no ground for relief” when the sentence is otherwise lawful. U.S. v. Buenrostro, 868 F.2d 135 (5th Cir. 1989); U.S. v. Gallegos, 868 F.2d 711 (5th Cir. 1989); U.S. v. Rojas, 868 F.2d 1409 (5th Cir. 1989).
5th Circuit holds refusal to follow recommendation as to guideline range in a plea agreement does not render sentence illegal. (860) As part of a plea agreement, the government recommended to the sentencing court that the drug courier be sentenced to between 63-78 months. In taking the plea, the district court repeatedly stated that it was not bound by the government’s recommendation. At sentencing, the court found a higher offense level was warranted and sentenced the defendant to 120 months. The 5th Circuit held that given the district court’s admonitions that it was not bound by the recommendation, the refusal to depart downward to 78 months did not result in a sentence which was “in violation of law.” Also, the defendant waived any errors in the presentence report by failing to make a timely objection at the hearing. U.S. v. Velasquez, 868 F.2d 714 (5th Cir. 1989).
6th Circuit finds no jurisdiction to review refusal to depart down based on argument that victim provoked offense. (860) Defendant, a federal prisoner, pled guilty to assaulting an inmate resulting in serious bodily harm, in violation of 18 U.S.C. § 113(a)(6). He moved for a downward departure under § 5K2.10, which applies when the victim’s conduct significantly contributed to provoking the defendant’s offending behavior. The district court denied defendant’s motion. The Sixth Circuit ruled that it lacked jurisdiction to review the refusal to depart. In this circuit, a district court’s decision not to depart downwards is considered unreviewable, except where there is clear evidence that “the lower court incorrectly believed that it lacked authority to grant such a departure.” Here, the district judge made it clear that the reason he was denying defendant’s motion was not because he believed he lacked the power to grant it, but because he believed doing so was inappropriate, given the circumstances of the case. The judge did not, as defendant argued, graft an additional duress requirement onto § 5K2.10. U.S. v. Church, 731 F.3d 530 (6th Cir. 2013).
6th Circuit rules court’s refusal to depart was not reviewable on appeal. (860) Defendant contended that the district court erred by failing to depart downward under § 5H1.6, the policy statement regarding family ties and responsibilities. The Sixth Circuit held that the claim was not reviewable. This circuit has consistently held that the decision by a district court not to depart downwards from the Guidelines is not reviewable on appeal unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure. Here, the court indicated that it had considered the factors relevant to § 5H1.6 and determined that the departure was not warranted. Therefore, the claim was not reviewable. U.S. v. Mitchell, 681 F.3d 867 (6th Cir. 2012).
6th Circuit upholds refusal to depart based on medical conditions and public service. (860) Defendant argued that the district court erred by failing to depart downward under § 5H1.4 because of his numerous medical conditions, including insulin-dependent diabetes, arthritis of the spine and hips, heart problems, and unspecified problems due to his exposure to Agent Orange. The Sixth Circuit found no error. The court concluded that the Bureau of Prisons was able to satisfy defendant’s medical requirements. The court also stated that it considered defendant’s health problems in imposing a sentence at the low end of the Guidelines range. The court also did not err in refusing to depart based on defendant’s military and public service (he had served in Vietnam and worked as a law enforcement officer). The court characterized defendant’s request for a downward departure based on his public service as “ironic,” because “the essence” of defendant’s criminal activity was “inextricably tied up with his official law enforcement position.” Moreover, the court’s denial of his request for departures was unreviewable. U.S. v. Theunick, 651 F.3d 578 (6th Cir. 2011).
6th Circuit declines to review court’s failure to grant downward departure. (860) Defendant argued that the district court erred in failing to grant a downward departure on the ground that a criminal history category of VI substantially overrepresented the seriousness of his criminal history. Defendant acknowledge that his trial counsel did not move for a downward departure under § 4A1.3(b)(1) and therefore the district court did not have an opportunity to rule on the motion. Nevertheless, defendant contended that the court’s failure to grant a downward departure on this ground constituted plain error. The Sixth Circuit found no error. The judge was clearly aware of his discretion to depart from the Guidelines range, but declined to do so. Because the court recognized its discretion, the panel declined to review the court’s failure to grant a downward departure under § 4A1.3(b)(1). U.S. v. Johnson, 553 F.3d 990 (6th Cir. 2009).
6th Circuit upholds refusal to grant departure or variance based on family circumstances. (860) Defendant challenged the district court’s denial of his motion for a downward departure or a variance based on “exceptional family circumstances.” The Sixth Circuit found no grounds for reversal. Even after Booker, a district court’s refusal to depart downward is not reviewable unless the district court incorrectly believed that it lacked discretion to depart downward. Here, the district court understood its discretion, so its decision was not reviewable. In addition, the court’s refusal to grant a downward variance did not make the sentence unreasonable. The court reasonably concluded that defendant’s absence from his family would be mitigated by his wife’s continued presence at home and the family’s continued receipt of substantial healthcare, housing and sustenance benefits. The sentence was also supported by the Sentencing Commission’s policy statement in § 5H1.6 regarding the relevance of family circumstances in sentencing. See. U.S. v. Carter, 510 F.3d 593 (6th Cir. 2007).
6th Circuit finds that it has jurisdiction to review sentence within guideline range. (860) Under 18 U.S.C. § 3742(a)(1), courts of appeals have jurisdiction to review any sentence “imposed in violation of law.” Defendant appealed a sentence within the advisory guidelines range. Relying on § 3742, the government argued that defendant’s sentence was not “imposed in violation of law” and that the court of appeals lacked jurisdiction to review it. The Sixth Circuit rejected this argument and held that when a defendant argues that his sentence is unreasonable, he is asserting that it is imposed in violation of law. U.S. v. Trejo-Martinez, 481 F.3d 409 (6th Cir. 2007).
6th Circuit clarifies reviewability of refusal to grant downward departures. (860) In U.S. v. Puckett, 422 F.3d 340 (6th Cir. 2005), the Sixth Circuit held that the principle that “refusals to grant a downward departure are unreviewable” survived Booker, and that a district court’s decision not to depart downward would not be reviewed unless the record reflected that the court was not aware of or did not understand its discretion to make such a departure. Here, the Sixth Circuit noted that this opinion has caused some confusion, and decided to clarify some ambiguities. Despite its broad language, Puckett addresses only the appellate review of the guidelines calculation, which under Booker is both advisory and merely one factor to be considered under 18 U.S.C. § 3553(A). It does not govern or alter a court’s ability to review the overall reasonableness of the sentence. Puckett stands only for the proposition that the appellate court cannot review a district court’s decision to deny a Chapter 5 guideline departure in calculating the guideline sentence. The court must still review for reasonableness in the context of the other § 3553(a) factors. U.S. v. McBride, 434 F.3d 470 (6th Cir. 2006).
6th Circuit holds that refusals to depart downward are still not reviewable. (860) Traditionally, the decision by a district court not to depart downwards from the guidelines is not reviewable on appeal unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure. U.S. v. Stewart, 306 F.3d 329 (6th Cir. 2002). The Sixth Circuit found nothing post-Booker to disturb this standard of review. Booker left intact § 3742(a) and (b). Although the sentence departed from may be reviewed under Booker, the appellate court will not review decisions of a district court not to depart downward “unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure. Here, the district court not only explicitly stated that it knew it could depart from the suggested guideline range, but it clearly chose not to do so. The decision was not reviewable. U.S. v. Puckett, 422 F.3d 340 (6th Cir. 2005).
6th Circuit has no discretion to review discretionary refusal to depart. (860) Defendant requested, but the district court denied, a downward departure under U.S.S.G. § 5K2.13 based on his purported diminished capacity. The Sixth Circuit ruled that it lacked jurisdiction to review the matter. There was no evidence that the district court did not understand its discretion to depart downward. Defendant did not argue this point, claiming only that the court failed to exercise its discretion properly. U.S. v. Clark, 385 F.3d 609 (6th Cir. 2004).
6th Circuit has no jurisdiction to review where district court found no basis for departure “in this case.” (860) Defendant argued that the district court should have granted a downward departure in her sentence on the basis of her rape when she was in federal custody on a prior conviction, and for the charity work that she did for Amnesty International and Human Rights Watch. The district court, in refusing to depart based on the rape, found that while it was tragic and very distressing to the defendant, it did not warrant a downward departure in this case. There was no showing that the mental effect of the rape affected her responsibility for the current crime. It also found that her work for human rights organizations was commendable, but was not a basis for departure here. Because the district court did not state that it did not have the ability to depart, and instead found no basis for departure in this case, the Sixth Circuit ruled that it had no jurisdiction to review the matter. U.S. v. Lucas, 357 F.3d 599 (6th Cir. 2004).
6th Circuit has no discretion to review refusal to depart where court was aware of discretion. (860) The district court explicitly recognized that it possessed the discretion to depart downward. The government argued that “while the court does have the ability to give a downward departure in this case, [defendant’s] conduct is not outside the heartland.” After defense counsel’s response to this argument, the judge stated: “you know, I don’t really have a lot of flexibility in this case. And that doesn’t mean I don’t recognize my ability to depart downward because I do.” After considering all of defendant’s arguments for downward departure, the judge stated that the factors for a downward departure “are just not here.” Since the sentencing court was aware of its authority to depart, the Sixth Circuit ruled that defendant lacked a basis to challenge the denial of her motion for a downward departure. U.S. v. Williams, 355 F.3d 893 (6th Cir. 2003).
6th Circuit holds that § 3742 does not violate due process. (860) Defendant conceded that his case did not satisfy the requirements for appellate review in 18 U.S.C. § 3742, but argued that his inability to appeal the court’s denial of a downward departure constituted a violation of his 5th Amendment due process rights. He contended that appellate jurisdiction conferred by § 3742 impermissibly discriminates between appeals by a defendant and appeals by the government by making it more difficult for the defendant to appeal a denial of a downward departure than for the government to appeal a grant of a downward departure. The Sixth Circuit found no due process violation. Defendant had no constitutional right to appeal his sentence. Appellate jurisdiction is conferred solely by statute. Under § 3742, a defendant’s right to appeal a sentence is essentially the mirror image of the government’s right to appeal a sentence. The only distinction is that a defendant may appeal a sentence only when it is “greater than” the guideline range, while the government may appeal a sentence only when it is “less than” the guideline range. That is a distinction without a difference, however, and did not demonstrate any impermissible discrimination between appeals by a defendant and appeals by the government. U.S. v. Nation, 352 F.3d 1075 (6th Cir. 2003).
6th Circuit will not review refusal to depart despite claim that probation officer overstepped bounds. (860) Where a sentence is not imposed in violation of the law or is not the result of an incorrect application of the guidelines, the refusal of the trial judge to grant a downward departure is not an issue cognizable on appeal. Defendant attempted to avoid this result by arguing that the probation officer overstepped her bounds in preparing the PSR and became an advocate arguing against the granting of the requested downward departure. The Sixth Circuit found no impropriety. Moreover, even if the probation officer overstepped her bounds, the result would not change. The trial judge was a very experienced jurist, and there was no indication that she abdicated her decisional role by rubber-stamping the recommendation of the probation officer. U.S. v. Espalin, 350 F.3d 488 (6th Cir. 2003).
6th Circuit holds that court was aware of authority to grant diminished capacity departure. (860) Although a psychiatric examination revealed that defendant suffered from major depressive disorder and functioned at a borderline intellectual level, the evaluating team nonetheless concluded that defendant did not suffer from diminished capacity, as required by U.S.S.G. § 5K2.13. The transcript from the sentencing hearing showed that the district court considered defendant’s argument for a § 5K2.13 departure but concluded, based upon the test results, that a downward departure based upon diminished capacity was unwarranted. The Sixth Circuit concluded that the district court was aware of its discretion to grant a downward departure for diminished capacity, but determined that the facts of the case did not justify such a departure. Therefore, the refusal to depart was unreviewable. U.S. v. Cooper, 348 F.3d 493 (6th Cir. 2003).
6th Circuit cannot review where court stated that even if it could depart it would not. (860) One defendant requested a downward departure based on the harsh conditions of confinement and other requested a departure based on his status as a deportable person. In both cases, the judge stated that she did not find a departure to be authorized, but that even if it were, she would exercise her discretion not to depart. The Sixth Circuit held that where a judge believes that she has no authority to depart and that she would not depart even if she had the authority, the judge’s refusal to depart is unreviewable. A remand to a judge who has already stated that she would not exercise her discretion to depart would be a “useless formality.” U.S. v. Solorio, 337 F.3d 580 (6th Cir. 2003).
6th Circuit says court misunderstood discretion to depart based on immigration factors. (860) Defendant assaulted a fellow inmate while in prison. He sought a downward departure for the two years he had been incarcerated already as an immigration detainee at the time of his offense. The district court denied the motion, noting that “there is nothing either in the Sentencing Guidelines or in the law that would allow [the Court] to depart downward.” The Sixth Circuit ruled that these comments reflected the court’s belief that it lacked the discretion to depart downward. Therefore, the refusal to depart was reviewable. In effect, the court inverted the rule. The court appeared to assume that, absent the guidelines’ reference to a particular factor, the court lacked authority to depart downward on that basis. The rule, however, is the opposite – unless the guidelines specifically proscribe consideration of the factor, then the factor is to be considered. Moreover, what little case law there is on the subject makes clear that district courts can depart downward on the basis of immigration-related factors. See, e.g. U.S. v. Farouil, 124 F.3d 838 (7th Cir. 1997). The district court should have gone on to determine whether defendant’s status as a previously confined immigration detainee removed his case from the heartland of the applicable guidelines. U.S. v. Camejo, 333 F.3d 669 (6th Cir. 2003).
6th Circuit will not review refusal to depart from career offender guideline. (860) Defendant did not challenge his status as a career offender, but argued that the district court should have departed downward because his criminal history category significantly overrepresented the seriousness of his prior criminal conduct in light of four factors: (1) defendant was young at the time of the conviction, (2) the offenses involved only marijuana, (3) the crimes were in the least serious class of felonies in Tennessee, and (4) his 24-month sentence for each conviction was suspended. The Sixth Circuit found that because nothing in the record indicated that the judge was unaware of his discretion to depart under § 4A1.3, the court’s decision not to depart was not reviewable. The judge’s statements indicated that he though the sentence high for defendant’s crime, but they did not indicate that he was unaware of his discretion to depart. The government did not challenge the authority of the sentencing court to depart, and the court never expressed any doubt about the extent of its discretion. U.S. v. Ridge, 329 F.3d 535 (6th Cir. 2003).
6th Circuit refuses to review where court recognized its discretion to depart. (860) Defendant requested a downward departure based on a number of factors, including his rehabilitation efforts. The court found his rehabilitation efforts, while “commendable,” were not “extraordinary,” and did not warrant a downward departure. When defense counsel argued that a departure was justified by the combination of factors, the court responded “[w]ell, I’ve not been made aware of anything that would warrant a downward departure for a sentence less than the guidelines collectively or individually.” The Sixth Circuit found that the district court recognized its discretion to depart downward, but based on the evidence presented to it, found that such a departure was not warranted. Therefore, the appellate court could not review the district court’s decision not to depart downward. U.S. v. Stewart, 306 F.3d 295 (6th Cir. 2002).
6th Circuit says court’s rejection of factual basis for departure implicitly recognized authority to depart. (860) Defendant appealed the district court’s decision not to depart downward in sentencing him based on his government’s culpability for damaging his health in needlessly and (allegedly) vindictively transporting him from Minnesota to Detroit to testify in another case. The Sixth Circuit found that the matter was not reviewable because the court implicitly recognized its discretion to depart from the guidelines by calling into question the factual basis of the defendant’s motion. The court noted that, in certain circumstances, it would have to determine whether the government’s maltreatment of a prisoner could serve as an appropriate basis for a downward departure, but that, even if this were an appropriate basis for a downward departure, the facts of the case would not support it. In other words, the court concluded that even if it had discretion to depart downward on this basis, it would not. Thus, the issue was not reviewable on appeal. U.S. v. Corrado, 304 F.3d 593 (6th Cir. 2002).
6th Circuit holds that departure decision was not reviewable. (860) Contrary to defendant’s contention, the district court considered and rejected defendant’s motion for a downward departure under § 2D1.1. Defendant’s counsel raised the issue in the sentencing colloquy by asking the district court to consider facts that allegedly showed defendant’s lesser culpability. Rather than grant the downward departure, the court replied that it had already taken those facts into account when it gave defendant a four-level reduction for minimal participation in the conspiracy. Because the district court considered defendant’s departure request on the merits, the Sixth Circuit found that the ruling was not reviewable. U.S. v. Burns, 298 F.3d 523 (6th Cir. 2002).
6th Circuit upholds court’s refusal to depart in money laundering case. (860) Defendant argued that the circumstances surrounding her money laundering conviction were atypical of what occurs in traditional money laundering offenses because she did not attempt to conceal her profits or use the laundered money to further other criminal activities. Therefore, she argued that the district court should have granted her a downward departure. The Sixth Circuit found that the court’s refusal to depart was unreviewable because the court was fully aware that it possessed the authority to grant a downward departure and simply declined to do so. The court specifically addressed the argument that defendant raised on appeal, stating that “the money laundering wasn’t incidental to the underlying offense.” A November 2001 amendment to the guidelines did not benefit defendant. U.S. v. Orlando, 281 F.3d 586 (6th Cir. 2002).
6th Circuit holds that court was aware of authority to make limited mental capacity departure. (860) In response to defendant’s argument regarding his limited mental capacity, the district court accepted his assertion that he fell within the lower quartile in terms of intelligence, but rejected defendant’s motion for a downward departure on that basis. The court explained that it would not depart based on defendant’s low intelligence because defendant’s mental capacity did not affect the likelihood that he would resume selling drugs in the future. The Sixth Circuit held that the court’s decision not to grant a downward departure was not reviewable. The district court was aware of its authority to depart based on defendant’s limited mental capacity. The district court directly addressed her argument, and rejected it because of its concern that defendant’s mental capacity had little or no positive impact on his recidivism. U.S. v. Smith, 278 F.3d 605 (6th Cir. 2002).
6th Circuit says court may not have been aware of authority to depart from career offender guideline. (860) Defendant sought a downward departure from the career offender guideline because each of his predicate prior convictions involved a fairly small amount of crack cocaine. In refusing to depart, the district court noted that “[T]his is a sad situation, but I do not believe that the career offender provision was not intended for people like [defendant]…. And although [defendant’s] drugs sale for which he was convicted were not all that great, they were still drug sales.” The Sixth Circuit found the record ambiguous as to whether the district judge was aware that he could depart downward from the career offender guideline based on the relatively small quantities of drugs involved in the predicate conviction. In U.S. v. Washington, (6th Cir. Aug. 8, 2001) (table, unpublished) decided after defendant was sentenced, a 6th Circuit panel approved a downward departure where the defendant’s three previous convictions involved, respectively, 11 rocks of cocaine, one rock of cocaine, and 20 grams of cocaine, and he had never served time in jail for any of the offenses. Because the sentencing court did not have the benefit of the Washington case at the time defendant was sentenced, the 6th Circuit remanded for the district court to clarify whether it was aware that a departure may have been granted. U.S. v. Smith, 278 F.3d 605 (6th Cir. 2002).
6th Circuit says denial of downward departure motion was not reviewable on appeal. (860) The district court considered the merits of granting defendant a downward departure on account of his health and his acceptance of responsibility and denied the motion. Thus, because the district court recognized its power to depart but merely exercised its discretion not to do so, the Sixth Circuit found that defendant’s challenge to the court’s failure to depart downward was not reviewable on appeal. U.S. v. Bearden, 274 F.3d 1031 (6th Cir. 2001).
6th Circuit holds that decision to make only five-level family responsibilities departure was not reviewable. (860) In response to the defense’s request for a sufficient downward departure that would allow defendant to remain with his family, the judge asked “have you ever found a Court of Appeals case where they sustained a 14 level downward departure?” The judge later stated that “as far as my reading of the guidelines is concerned … the fact that [defendant was] the only one prosecuted in the federal system” should not be taken into account as grounds for a departure. Ultimately the court departed downward by five levels based on defendant’s extraordinary family circumstances. Defendant challenged the extent of the departure, arguing that the district court misunderstood its ability to depart in light of U.S. v. Coleman, 188 F.3d 354 (6th Cir. 1999). In Coleman, an en banc court held that a trial judge cannot categorically exclude any non-prohibited factor from consideration for a downward departure. The Sixth Circuit held that the district court properly understood its discretion to depart, so its decision to make only a five-level departure based on defendant’s extraordinary family responsibilities was not reviewable. The judge’s statements demonstrated the “judge’s cognizance of the high standard of proof needed to justify such a drastic departure from the Guidelines.” U.S. v. Schulte, 264 F.3d 656 (6th Cir. 2001).
6th Circuit cannot review refusal to depart where court was aware of discretion. (860) Defendant argued that the court erred in declining to depart downward on the basis of his clean criminal record, the non-violent nature of his offense, his employed status, his status as caretaker of his parents, his status as the parent of two minor children, and the requirement of immediate restitution, and the alleged facts that the government suffered no actual loss and that he was less culpable than his co-defendant mother. The Sixth Circuit found it had no jurisdiction to review the matter. The district court knew of its discretion to depart and declined to exercise it. U.S. v. Searan, 259 F.3d 434 (6th Cir. 2001).
6th Circuit has no jurisdiction where court determined defendant’s behavior was not aberrant. (860) Defendant claimed that he was entitled to a downward departure because his conduct was a single act of aberrant behavior. The Sixth Circuit held that this claim was not reviewable on appeal. The district court rejected defendant’s motion for a downward departure because it determined that defendant’s behavior was not aberrant in light of his prior criminal history, not because it was unaware of its authority to depart downward for aberrant behavior in general. U.S. v. Price, 258 F.3d 539 (6th Cir. 2001).
6th Circuit has no jurisdiction to review refusal to depart under facts of the case. (860) Defendant was convicted of embezzling government funds. She argued that the victim itself committed some wrongdoing, and that the district court erred in not granting her a downward departure under § 5K2.10. The Sixth Circuit ruled that the matter was not reviewable. The district court expressly recognized that it had the authority to depart downward under § 5K2.10, but declined to do so because of its conclusion that under the facts of this case, a departure was not warranted. Accordingly, this issue was not properly before the appellate court. U.S. v. McGahee, 257 F.3d 520 (6th Cir. 2001), declined to follow by Regalado Cuellar v. U.S., 553 U.S. 550, 128 S.Ct. 1994 (2008).
6th Circuit cannot review refusal to depart where court stated on record that it had authority to depart. (860) Defendant sought to appeal the finding of the district court that he was not entitled to a downward departure due to his alien status. He argued that because he was a Cuban national who could not currently be deported due to the lack of diplomatic relations between Cuba and the United States, he might be held indefinitely in the custody of the INS after his release from prison. The Sixth Circuit held that it could not review the refusal to depart. The sentencing judge clearly indicating that he believed that he had the authority to depart downward on the basis of defendant’s alien status, but that he was declining to do so here. Where the trial judge affirmatively states on the record that alien status can provide a basis for departure, but declines to do so under the circumstances of the particular case, such awareness of the discretionary power to depart precludes review of the sentencing judge’s decision not to depart. U.S. v. Salgado, 250 F.3d 438 (6th Cir. 2001).
6th Circuit presumes court was aware of authority to depart for post-sentence rehabilitation. (860) In U.S. v. Rudolph, 190 F.3d 720 (6th Cir. 1999), the Sixth Circuit held that a district court may depart downward on the basis of a defendant’s post-sentence rehabilitation. Defendant challenged the district court’s refusal to depart, claiming it was unaware of its authority to depart on this basis. Although the court did not explicitly discuss its authority to depart, a district court need not explicitly state that it is aware of its discretionary power to depart. Thus, the Sixth Circuit assumed that the court in the exercise of its discretion simply found the departure unwarranted. Although Rudolph had not been decided at the time of defendant’s resentencing, language used by the court nonetheless suggested that the court believed it had the authority to depart. Moreover, even if the court incorrectly believed itself to be without authority to depart, remand would be unnecessary because defendant’s rehabilitative efforts were insufficient as a matter of law to support a downward departure. To justify a departure, “the rehabilitation must far exceed that required for the acceptance of responsibility reduction … and must seem extraordinary or exceptional when compared to the rehabilitation of other defendants.” Voluntary participation in a treatment program for sexual offenders, while praiseworthy, is not sufficiently exceptional to qualify for a departure. U.S. v. Cook, 238 F.3d 786 (6th Cir. 2001).
6th Circuit says court properly refused to depart under § 5K1.1 where no government motion. (860) Defendant argued that the district court should have departed downward based on his “earnest efforts to cooperate with authorities.” However, the government did not file a motion under § 5K1.1 for a substantial assistance departure, and there was not an express agreement between the government and defendant to file such a motion. Thus, the Sixth Circuit ruled that the district court properly denied defendant’s request for a downward departure under § 5K1.1. In addition, the district court’s decision not to depart under § 5K2.0 was not reviewable on appeal. U.S. v. Harris, 237 F.3d 585 (6th Cir. 2001).
6th Circuit finds no jurisdiction to consider departure claim. (860) Defendant received two criminal history points for 1987 and 1995 convictions for driving under the influence. He argued that he should have received a downward departure because the 1987 conviction barely fell within the ten-year window for a criminal history calculation. It is settled that a district court’s failure to depart downward is not cognizable on appeal when the guideline range is properly computed, the court is aware of its discretion to depart downward, and the sentencing does not violate the guidelines or federal law. Here the district court stated that “the criminal history category of 2 does not overstate the defendant’s history and the objection is overruled.” Because a district court need not engage in a “ritualistic incantation” of an issue to show consideration, the Sixth Circuit ruled that it did not have jurisdiction to consider defendant’s claim. U.S. v. Moore, 225 F.3d 637 (6th Cir. 2000).
6th Circuit holds that court properly applied money laundering guideline. (860) Defendant fraudulently solicited investors for his company, and then converted the money for his own use. He was convicted of wire fraud and money laundering. He argued that the district court should have departed downward to apply the fraud guideline, rather than the money laundering guideline. The Sixth Circuit ruled that the district court was aware of his authority to depart downward, and exercised its discretion not to depart. After discussing both guidelines, the judge stated that “[e]ven though it’s a difficult question, it’s my conclusion that the money laundering statute is the appropriate guidelines to use as the starting point for the calculations in this case.” A court is not required to state that it has the discretion to depart. Moreover, a departure would be unwarranted because the facts of this case were not outside the heartland of the money laundering guideline. Defendant structured transactions to avoid a paper trail, concealing his fraudulent activities. Rather than accepting money directly from the victims, defendants directed victims to transfer money to third parties. Defendant then instructed the third parties to withdraw the money and transfer cash. Moreover, withdrawals from bank accounts were structured so that no amount exceeded $10,000. Defendant failed to explain how this case was atypical of money laundering cases. U.S. v. Prince, 214 F.3d 740 (6th Cir. 2000).
6th Circuit holds that refusal to depart was not appealable. (860) Defendant argued that the district court erred by failing to depart downward based upon his exemplary community service. The Sixth Circuit ruled that it had no authority to review the matter. The district court was clearly aware of its discretion to depart downward: it noted that it had received numerous letters on defendant’s behalf and sua sponte considered, and rejected, a downward departure. Because the court was aware of its discretion to depart downward, its refusal to do so was not reviewable. U.S. v. Wells, 211 F.3d 988 (6th Cir. 2000).
6th Circuit holds that Koon did not alter review of discretionary decision not to depart. (860) Defendants argued that the district court abused its discretion when it denied their motions for a downward departure. They cited Koon v. U.S., 518 U.S. 81 (1996) for the proposition that a district court’s decision not to depart should be reviewed for an abuse of discretion. The Sixth Circuit found Koon inapplicable to a court’s decision not to depart; Koon dealt with a district court’s affirmative decision to depart downward. Koon thus did not alter circuit precedent that precludes appeals from the decision not to depart from the guideline range unless the court mistakenly believed that it lacked the legal authority to depart. Thus, the primary issue in the case was whether the district court believed that it had legal authority to depart if it found defendants’ criminal history categories overstated the seriousness of their past conduct. The district court made an informed decision not to depart for either defendant, and thus those decisions were unreviewable. U.S. v. Henderson, 209 F.3d 614 (6th Cir. 2000).
6th Circuit holds that court was aware of authority to depart. (860) Defendant argued that the district court should have departed downward at sentencing. The Sixth Circuit ruled this argument was unreviewable, since the district court was clearly aware of its authority to depart. The court stated that defendant’s family circumstances and background were “relatively typical,” and his drug and alcohol use did not constitute a diminished capacity. There was “just nothing in this case that would amount to either an appropriate legal basis for a downward departure … or that would factually amount to an appropriate reason to go below the guideline range.” Accordingly, the district court recognized its power to depart downwards but merely exercised its discretion not to do so. U.S. v. Butler, 207 F.3d 839 (6th Cir. 2000).
6th Circuit denies physical impairment departure for defendant with non-advanced AIDS. (860) Defendant appealed the district court’s denial of a downward departure for “an extraordinary physical impairment” under § 5H1.4. The Sixth Circuit ruled that it had no authority to review the decision since the district court was aware of its authority to depart but simply found that the facts did not warrant a departure. Although defendant had AIDS, the district court did not feel that defendant’s condition had progressed to the point where a downward departure would be legally justifiable. Defendant was able to function in the normal prison population and appeared to be in fairly good health. Moreover, the court found that even if his condition did constitute an extraordinary physical impairment, a downward departure was not appropriate considering the seriousness of the offense. The district court relied on U.S. v. Thomas, 49 F.3d 253 (6th Cir. 1995), which concluded that AIDS alone is not an extraordinary physical impairment. This showed that the court knew it had the authority to grant defendant a downward departure under § 5H1.4, but declined to do so on the facts. Therefore, the district court’s decision was not reviewable. U.S. v. Owusu, 199 F.3d 329 (6th Cir. 2000).
6th Circuit will not review where court was aware of authority to depart. (860) Defendant argued that the trial court erred in refusing to grant a downward departure in defendant’s sentence on account of his alien status. The Sixth Circuit held that the issue was not reviewable on appeal. The record affirmatively reflected the district court’s knowledge of its authority to grant the departure sought by defendant. After hearing the argument of defense counsel that alien status is a proper basis for departure, the court responded that “I think there are times when it can” provide a basis for departure, but that “I simply don’t think these circumstances warrant” such a departure. This statement plainly and unambiguously evinced the court’s awareness of its discretionary power to depart. U.S. v. Farrow, 198 F.3d 179 (6th Cir. 1999).
6th Circuit rules money laundering transactions involving gambling proceeds not outside heartland. (860) Defendant and his wife were convicted of operating an illegal gambling business and money laundering. In refusing to depart downward, the district court (1) rejected defendant’s suggestion that the money laundering guideline only applies to transactions connected with drugs or organized crime, and (2) rejected as a factual matter defendant’s explanation that he was required by state law to deposit the charitable gambling proceeds in the bank. The Sixth Circuit held that the district court’s conclusion that transactions in gambling proceeds are not per se outside the heartland was a question of law reviewable on appeal. However, the court’s rejection of defendant’s claim that he was trying to comply with state law when he engaged in the transactions was a discretionary refusal to depart, not reviewable on appeal. The Sixth Circuit further held that inclusion of gambling within the money laundering statutes as “specified unlawful activities” showed conclusively that transactions in gambling proceeds are not outside the heartland of money laundering offenses. U.S. v. Ford, 184 F.3d 566 (6th Cir. 1999).
6th Circuit cannot review refusal to depart for sentencing entrapment. (860) Defendant argued that the district court should have departed downward due to sentencing entrapment, claiming officers waited to arrest him until after sufficient sales had been made to meet mandatory minimum sentence requirements. A district court’s failure to depart downward on the basis of sentencing entrapment due to its finding that facts in the record militate against a downward departure is unappealable. U.S. v. Jennings, 83 F.3d 145, 153 (6th Cir.), amended, 96 F.3d 799 (6th Cir. 1996). In this case, the district judge “found nothing … that would make me believe that I could find by a preponderance of the evidence that there was sentencing entrapment.” The Sixth Circuit found the alleged error unappealable. U.S. v. Watkins, 179 F.3d 489 (6th Cir. 1999).
6th Circuit upholds refusal to depart for diminished capacity. (860) Defendant argued that he should have received a § 5K2.13 downward departure based on his diminished mental capacity. The district court refused to depart, finding that defendant’s depression from his mother’s death a year earlier was not sufficient to qualify him for a diminished capacity departure. Moreover, his condition may have been caused by his voluntary use of drugs. The Sixth Circuit affirmed. The district court found insufficient evidence of diminished capacity. Defendant failed to point to any evidence or provide any argument that this finding was clearly erroneous. Moreover, even if the finding were clearly erroneous, the district court’s failure to depart still would not be appealable. U.S. v. Watkins, 179 F.3d 489 (6th Cir. 1999).
6th Circuit has no jurisdiction where there is no evidence court was unaware of authority to depart. (860) Defendant challenged the district court’s failure to grant a downward departure. Since there was no evidence that the district court was unaware of its discretion to depart or that the guideline range was improperly computed, the Sixth Circuit refused to review the matter. A district court is not obliged to state that it knows it has the discretion to depart downward but is declining to do so. Rather, “it should be assumed, that the court, in the exercise of its discretion, found downward departure unwarranted.” U.S. v. Hill, 167 F.3d 1055 (6th Cir. 1999).
6th Circuit has no jurisdiction to review refusal to depart. (860) Defendant argued that the district judge erred in failing to grant him a downward departure due to his minimal participation, his lack of a prior record, the absence of violence in the charged conduct and the need to care for his child and wife. The Sixth Circuit found it had no jurisdiction to consider this claim. During the sentencing hearing, the judge clearly expressed recognition of his discretion to depart and entertained arguments on the efficacy of such a departure. In the end, however, he explicitly chose not to depart, stating “I do not feel that I can depart from the Guidelines. I think it’s a serious offense. I think he is clearly guilty. I think the jury’s verdict was well justified. I think he was clearly involved in the importation and distribution of these cigarettes.” The sentence was imposed in accordance with applicable law and was within the guidelines. U.S. v. Abdullah, 162 F.3d 897 (6th Cir. 1998).
6th Circuit cannot review discretionary refusal to depart. (860) Defendant contended that the district court abused its discretion when it refused to grant a downward departure. The Sixth Circuit held that the court’s refusal to depart was not appealable since it was not based upon an erroneous belief that the court lacked the authority to depart downward as a matter of law. The transcript of the sentencing hearing showed that the sentencing judge’s refusal to depart was based upon an exercise of discretion, not upon a legal determination that he had no authority to depart. U.S. v. Kelley Technical Coatings, 157 F.3d 432 (6th Cir. 1998).
6th Circuit cannot review refusal to grant substantial assistance departure. (860) Defendant argued that, because he cooperated with the government, the district court abused its discretion by refusing to grant him a downward departure under § 5K2.0. The Sixth Circuit held that it lacked jurisdiction to review the district court’s refusal to depart. A district court’s discretionary refusal to depart downward is generally not appealable, unless the district court mistakenly believed that it did not have legal authority to depart downward. Defendant did not claim that the district court thought it had no discretion to make a downward departure. Additionally, defendant did not contest the fact that the government’s refusal to recommend a downward departure was based on defendant’s withholding information concerning his involvement in drug trafficking, in violation of his plea agreement. U.S. v. Pruitt, 156 F.3d 638 (6th Cir. 1998).
6th Circuit finds no evidence judge misunderstood ability to depart for aberrant behavior. (860) Defendant contended that she was entitled to a downward departure because her actions constituted aberrant behavior. The Sixth Circuit held that it could not review the decision because there was no evidence that the judge did not understand his ability depart for aberrant behavior. Although defendant claimed that the court improperly interpreted the aberrant behavior definition as requiring the conduct to be a single action, the transcript clearly indicated that the court was aware it could depart. Thus, this issue was not reviewable on appeal. U.S. v. Lutz, 154 F.3d 581 (6th Cir. 1998).
6th Circuit has no jurisdiction to review court’s refusal to grant government’s departure motion. (860) Although the government moved for a § 5K1.1 substantial assistance departure, the district court denied the motion, observing that defendant’s assistance did not result in the convictions of his co-defendants and that it was not convinced defendant’s assistance was substantial. The Sixth Circuit ruled that it had no authority to review the court’s refusal to grant the § 5K1.1 motion. The only circumstance in which such a decision is reviewable on appeal is where the district court erroneously believed a downward departure was legally precluded or outside its discretionary power. This was not such a case. U.S. v. Strickland, 144 F.3d 412 (6th Cir. 1998).
6th Circuit will not review ruling that there was no sentencing entrapment. (860) Defendant and an associate sold crack to undercover agents. The agents then attempted to sell cocaine to defendant, offering to accept guns in partial payment of, or as collateral for, the cocaine. Defendant agreed. On the day of the transaction, defendant arrived with the weapons and was arrested. Defendant argued that the district court should have departed downward or granted him a dismissal based on sentencing entrapment. He contended that the police already knew they were going to arrest him and that they only insisted on a weapons exchange in order to enhance the crime. The Sixth Circuit held that the issue was not appealable. The district court assumed, without deciding, that sentencing entrapment is a valid grounds for departure, but that defendant failed to demonstrate facts amounting to sentencing entrapment. Because the court recognized its discretion to depart, its refusal to do so is not appealable. U.S. v. Jones, 102 F.3d 804 (6th Cir. 1996).
6th Circuit holds court was aware of its authority to depart. (860) Defendant contended that the district court abused its discretion by failing to grant his request for a downward departure based on the “atypical” nature of the case. The 6th Circuit held that the sentence was not appealable since the court was aware of its discretion to depart downward. The court specifically stated that it had considered and rejected the suggestion that a downward departure was appropriate. U.S. v. Kraig, 99 F.3d 1361 (6th Cir. 1996).
6th Circuit finds no jurisdiction to review offsetting substantial assistance and criminal history departures. (860) The government moved for a downward departure based on defendant’s substantial assistance. The district court recognized defendant’s substantial assistance, but also found that his criminal history category did not adequately reflect the seriousness of his past criminal conduct. It found that any benefit from defendant’s substantial assistance to the prosecution was offset by the underrepresented criminal history. Accordingly, the court sentenced him at the bottom of the applicable guideline range. The Sixth Circuit held that it lacked jurisdiction to review the refusal to depart. When the district court is aware of its discretion to depart from the guidelines, failure to do so is not appealable. U.S. v. Welch, 97 F.3d 142 (6th Cir. 1996).
6th Circuit has no jurisdiction to review extent of downward departures. (860) Defendant argued that the district court erred in refusing to award a greater downward departure under § 5H1.4 for his serious physical condition and under § 5K1.1 for the substantial assistance he provided to the government. The Sixth Circuit held that it had no jurisdiction to review the extent of a downward departure because such appeals do not fall under 18 U.S.C. § 3742. U.S. v. Nesbitt, 90 F.3d 164 (6th Cir. 1996).
6th Circuit says failure to depart for sentencing entrapment was not appealable. (860) Defendants argued that the district court erred in not departing based on a theory of sentencing entrapment. The 6th Circuit found the issue not appealable. The district court found facts in the record which it determined militated against a downward departure. By responding to defendants’ motion by referring to countervailing facts, the court implicitly acknowledged that it had discretion to depart from the guidelines. U.S. v. Jennings, 83 F.3d 145 (6th Cir. 1996).
6th Circuit cannot review court’s failure to make criminal history departure. (860) Defendant claimed that the district court erred by failing to find that his criminal history score overrepresented the seriousness his criminal history. The Sixth Circuit held that defendant’s § 4A1.3 claim was not cognizable on appeal. Defendant did not claim that the district court improperly computed his criminal history points or did not understand that it had discretion to depart from defendant’s criminal history category. U.S. v. Hill, 79 F.3d 1477 (6th Cir. 1996).
6th Circuit says offering details of offense not worthy of downward departure. (860) Defendant, a bank officer, committed bank fraud. After the fraud was discovered and defendant’s employment was terminated, defendant offered to complete a transaction for the bank, and allow the bank to retain his $64,000 in commission to offset the loss. At sentencing, he requested a downward departure because he had voluntarily revealed information about the offense, and because he had intended to pay off the fraud during the offense and to provide virtually full restitution after the offense. The Sixth Circuit ruled that it could not review the decision not to depart. The district judge’s statements showed that she was aware of her discretion to depart under § 5K2.0, but that she chose not to exercise it. Moreover, there was no basis for a downward departure. There was nothing unusual about defendant’s cooperation with the government to mandate a departure. U.S. v. Scott, 74 F.3d 107 (6th Cir. 1996).
6th Circuit directs court to consider coercion as basis for downward departure. (860) Defendant and her husband committed bank fraud in several states. She argued that the district court failed to recognize its discretion to consider her extraordinary circumstances as a basis for a downward departure. The Sixth Circuit agreed, and directed the district court to consider whether a departure was justified under § 5K2.12 based on coercion. There was overwhelming evidence that defendant’s criminal actions resulted from the coercion and control exercised by her husband. She was not involved in any fraud before she met her husband, and continued her criminal activity only after he threatened to kill himself, kill her, hurt their friends and pets, and commit bank robbery using violent means. The failure of the probation department and the district court to take note of these circumstances or to discuss this issue showed it was not aware of the applicability of § 5K2.12 and of its discretion to depart downward. U.S. v. Hall, 71 F.3d 569 (6th Cir. 1995).
6th Circuit has no jurisdiction to review refusal to depart. (860) Defendant claimed the district judge erred in failing to depart downward in light of her care giving responsibilities to her ailing mother. The Sixth Circuit found it had no jurisdiction to review the matter. The court was aware that it could exercise its discretion to depart and simply chose not to do so. U.S. v. Brown, 66 F.3d 124 (6th Cir. 1995).
6th Circuit says refusal to depart was based on defendant’s assistance, not psychiatric history. (860) Defendant pled guilty to possessing an unregistered firearm. The district court rejected the government’s § 5K1.1 motion and sentenced defendant to 21 months. Defendant argued that the court improperly rejected the departure and imposed a 21-month sentence because of his psychiatric history. The Sixth Circuit found that the court’s reasons for the 21-month sentence were proper. The district court’s failure to depart downward was not an appealable issue. Although the district court expressed its concern over defendant’s serious psychological problems, it also said that it was not convinced that defendant’s help would justify a § 5K1.1 departure. Thus, the court considered and assessed defendant’s assistance, and determined that it did not justify a departure. The court did not abuse its discretion. U.S. v. Organek, 65 F.3d 60 (6th Cir. 1995).
6th Circuit says court need not affirmatively state that it is aware of departure authority. (860) Defendant argued that the record did not affirmatively establish that the district judge was aware he had authority to depart downward. The Sixth Circuit refused to review the matter, concluding that a trial judge has no duty to affirmatively state that he knows he possesses the power to make a downward departure, but declines to do so. District judges are now quite familiar with the guidelines, and an appellate court should be reluctant to treat as ambiguous a ruling that does not affirmatively state that the judge knew he could depart downward. U.S. v. Byrd, 53 F.3d 144 (6th Cir. 1995).
6th Circuit refuses to review sentencing disparity claim. (860) Defendant was sentenced to 37 months after a jury found him guilty of count 1 of the indictment. He argued that he should have received a lighter sentence than a co-defendant who was found guilty of both counts 1 and 2. The Sixth Circuit held that it lacked discretion to review the sentencing disparity claim. An appellate court lacks jurisdiction over a claim that the sentencing court refused to depart downward. However, it may review a sentence based on a legal error, even if within the guidelines range. Defendant did not present any legal error to review. U.S. v. Epley, 52 F.3d 571 (6th Cir. 1995).
6th Circuit holds that court fully exercised discretion in rejecting § 5K2.13 departure. (860) Defendant argued that the district court improperly refused to depart under § 5K2.13 on the basis of his diminished capacity. The Sixth Circuit refused to review the matter because the record showed that the district court fully exercised its discretion in refusing to depart. A district court’s refusal to depart downward is not reviewable on appeal where the court was fully aware that it had discretion to depart but chose not to based on the evidence. U.S. v. Bureau, 52 F.3d 584 (6th Cir. 1995).
6th Circuit refuses to review judge’s failure to impose concurrent sentences on revocation of supervised release. (860) After defendant was convicted of a dilaudid conspiracy, the district court revoked his supervised release for a previous dilaudid conviction and imposed a 15-month sentence to be served consecutively to the new dilaudid sentence. Defendant argued that the judge did not realize that he had the authority to direct the sentence on revocation of supervised release to be served concurrently with the sentence for the recent conviction. The 6th Circuit found that the lower court exercised its discretion to determine that no downward departure was appropriate, and that it had no jurisdiction to review this discretionary decision. U.S. v. Landers, 39 F.3d 643 (6th Cir. 1994).
6th Circuit does not decide whether crime was aberrant behavior where judge did not wish to depart. (860) Defendant, a UPS employee, robbed a UPS dispatcher and courier of $185,000. Defendant argued that his offense was a single act of aberrant behavior that warranted a downward departure. The 6th Circuit examined at length cases in other circuits that discussed departures for aberrant behavior. It refused to decide whether defendant’s extensive planning precluded such a departure, since the judge made it “quite plain” that he had “no interest” in departing downward. The district judge thought the seriousness of the offense, rather than defendant’s mental state or character, was of “paramount importance.” U.S. v. Duerson, 25 F.3d 376 (6th Cir. 1994).
6th Circuit refuses to review failure to depart downward for aberrant behavior. (860) Defendant argued that his drug transaction with the government informant was the type of crime the Sentencing Commission intended to be included in aberrant behavior departures. The 6th Circuit found that defendant’s claim was not cognizable on appeal. The district court did not err in computing the guideline range nor did it err in imposing sentence. Furthermore, the court was aware of its discretion to depart downward. U.S. v. Vincent, 20 F.3d 229 (6th Cir. 1994).
6th Circuit does not review refusal to depart. (860) Defendant argued that his rehabilitative effort to cure his gambling addiction was a mitigating factor that warranted a downward departure under section 5K2.0. The 6th Circuit did not review the refusal to depart. Where a district court is not unaware of its discretion to depart from the guideline range, and the sentence was not imposed in violation of law or as a result of an incorrect application of the guidelines, the failure to depart is not cognizable on appeal. U.S. v. Griffith, 17 F.3d 462 (6th Cir. 1994).
6th Circuit says that refusal to depart downward is nonappealable. (860) The 6th Circuit refused to review a refusal to depart downward, saying the issue is “simply nonappealable.” U.S. v. Moss, 9 F.3d 543 (6th Cir. 1993).
6th Circuit holds that district court was aware if its discretion to depart downward. (860) The 6th Circuit refused to review the district court’s refusal to depart downward based on defendant’s age and criminal history. The district judge was aware of his discretion to depart downward, stating that despite defendant’s argument that his criminal history was overrepresented, “I do not feel free based upon what I consider to be the facts in this case to set any other sentence than that provided for by the guidelines.” U.S. v. Brannon, 7 F.3d 516 (6th Cir. 1993).
6th Circuit refuses to review where district court mistakenly called reduction from maximum sentence a downward departure. (860) Defendant had a guideline range of 12 to 18 months. The district court stated that it was granting the government’s recommendation for a downward departure, and was reducing defendant’s sentence from 18 to 15 months. The 6th Circuit refused to review the sentence, even though the district court mistakenly identified its reduced sentence as a downward departure. It had no jurisdiction to review a sentence within the proper guideline range unless defendant raised a constitutional question. U.S. v. Velez, 1 F.3d 386 (6th Cir. 1993).
6th Circuit lacks jurisdiction to review sentence within range. (860) The government recommended that defendant be given the lowest sentence within the guidelines range for his offense, but the district court imposed a higher sentence within the range. The 6th Circuit held that it lacked jurisdiction to review a sentence within the guideline range. Neither the failure to follow the government’s recommendation nor the court’s emphasis on the seriousness of defendant’s offense sufficed to create jurisdiction. U.S. v. Lovins, 992 F.2d 991 (6th Cir. 1993).
6th Circuit upholds authority to consider claim that court misunderstood its ability to depart downward. (860) The 6th Circuit affirmed that it had jurisdiction under 18 U.S.C. section 3742 to consider defendant’s claim that the district court misunderstood its authority to depart downward. Defendant essentially was complaining that his sentence was imposed as a result of an incorrect application of the guidelines, and thus the issue was appealable under section 3742(a)(2). U.S. v. Isom, 992 F.2d 91 (6th Cir. 1993).
6th Circuit refuses to review rejection of government motion for substantial assistance departure. (860) The 6th Circuit refused to review the district court’s rejection of the government’s section 5K1.1 motion. This was not a case where the district court failed to exercise its discretion or failed to give credence to the government’s evaluation of the extent of defendant’s assistance. Rather, the colloquy with the prosecutor revealed that the district court considered and understood the substance of the government’s motion, but, finding the government’s rationale unpersuasive, chose not to exercise its discretion to depart downward. U.S. v. Dellinger, 986 F.2d 1042 (6th Cir. 1993).
6th Circuit refuses to review sentence within properly computed guideline range. (860) Defendant challenged the district court’s refusal to depart based on her education, employment, family ties, and status as a mother of an infant born while incarcerated awaiting trial. She also contended she was coerced by the undercover informant to become involved in the offense. The 6th Circuit declined to review the issue, since defendant’s sentence was within the properly computed and unchallenged guideline range. U.S. v. Morgan, 986 F.2d 151 (6th Cir. 1993).
6th Circuit rejects argument based on original Davern opinion. (860) Relying upon U.S. v. Davern, 937 F.2d 1041 (6th Cir. 1991) (Davern I), vacated, 970 F.2d 1490 (6th Cir. 1992) (en banc) (Davern II), defendant argued that the district court erred by not considering, before imposing his sentence, mitigating circumstances which were not contemplated by the sentencing commission and which justified a downward departure. The 6th Circuit rejected this argument, since it was rejected by the en banc court in Davern II. Moreover, a defendant has no right to appeal a sentencing court’s decision not to depart downward. U.S. v. Akrawi, 982 F.2d 970 (6th Cir. 1993).
6th Circuit refuses to review refusal to depart based upon defendant’s duress. (860) The district court rejected defendant’s request to depart downward under section 5K2.12 based upon coercion and duress. The 6th Circuit refused to review the refusal to depart, since (1) the district court properly computed the guideline range, (2) the district court was not unaware of its discretion to depart downward from the guideline range, and (3 the district court did not impose the sentence in violation of law or as a result of the incorrect application of the sentencing guidelines. U.S. v. Chalkias, 971 F.2d 1206 (6th Cir. 1992).
6th Circuit rejects disparate sentences as grounds for departure. (860) Defendant claimed that his sentence was excessive because it was greater than that imposed on other individuals involved in related activities. Relying on Circuit precedent, the 6th Circuit rejected this claim. A district court may not depart downward under the guidelines for the purpose of harmonizing the sentences received by co-defendants. Because defendant’s sentence was within the guideline range, to bring defendant’s sentence into conformity with his co-defendants would require a downward departure. Defendant’s co-defendants were not similarly situated. One co-defendant was not as involved in the fraud scheme and agreed to cooperate and make significant restitution. Another co-defendant received the same sentence as defendant. Moreover, defendant was the mastermind behind the scheme. U.S. v. Romano, 970 F.2d 164 (6th Cir. 1992), superseded on other grounds by Guideline as stated in U.S. v. Perkins, 89 F.3d 303 (6th Cir. 1996).
6th Circuit refuses to review refusal to depart based on duress defense. (860) Since the district court was aware of its ability to depart downward under guideline section 5K2.12 based on duress, and exercised its discretion not to depart, the 6th Circuit found no legal error in the district court’s refusal to depart. U.S. v. Meyers, 952 F.2d 914 (6th Cir. 1992).
6th Circuit rules it has no jurisdiction to consider extent of downward departure. (860) The 6th Circuit ruled that it had no authority to review defendant’s argument concerning the extent of the district court’s downward departure. Thus it should not accept jurisdiction over appeals based on factors which the defendant argues should have influenced the degree of a downward departure. U.S. v. Gregory, 932 F.2d 1167 (6th Cir. 1991).
6th Circuit refuses to review failure to depart downward. (860) Defendant argued that the district court should have departed downward under guideline § 5K2.13, based on reduced mental capacity: and guideline § 5K1.1, based on substantial assistance to the government. The 6th Circuit rejected these claims, finding that where the guideline range is properly computed, the district court is aware of its discretion to depart downward, and the sentence is not imposed in violation of law or as a result of an incorrect application of the guidelines, the failure to depart downward is not cognizable on appeal. Moreover, a government motion is necessary to make a departure under § 5K1.1. U.S. v. Davis, 919 F.2d 1181 (6th Cir. 1990).
6th Circuit upholds sentence within guideline range. (860) Defendant argued that the district court should have departed downward from the guidelines because it should have been clear that he could not have organized a drug conspiracy. However, defendant did not point to any facts in the record that supported this assertion, and defendant’s counsel admitted that defendant’s sentence fell within the applicable guideline range. Because the sentence imposed was within the applicable range, “the sentence was not clearly erroneous under 18 U.S.C. § 3742(e).” Judge Nelson concurred in the result, noting simply that defendant’s claim was not cognizable on appeal. U.S. v. Smith, 918 F.2d 664 (6th Cir. 1990).
6th Circuit holds that failure to depart is not appealable. (860) The 6th Circuit held that a sentence which is within the guidelines, and is otherwise valid is not appealable on the grounds that the sentencing judge failed to depart from the guidelines based on factors which the defendant felt were not considered by the guidelines. The court also stated that even if appellate jurisdiction existed under 28 U.S.C. § 3742, defendant’s claims were meritless. U.S. v. Draper, 888 F.2d 1100 (6th Cir. 1989).
7th Circuit holds that it lacked jurisdiction to review extent of substantial assistance departure. (860) Defendant pled guilty to heroin conspiracy charges that carried a mandatory minimum sentence of five years. See 21 U.S.C. §§ 846, 841(b)(b)(1)(B). Her guideline range was 60-71 months, but the court granted the government’s substantial assistance motion under 18 U.S.C. § 3553(e), and sentenced her to 24 months. Although this was less than half the mandatory minimum and more than a year below the government’s most favorable recommendation, defendant appealed. The Seventh Circuit held that it lacked jurisdiction to review the contention. Valuing substantial assistance given as part of a cooperation agreement is a matter within the sentencing court’s discretion. Booker did not alter an appellate court’s limited jurisdiction under 18 U.S.C. § 3742(a). Various cases have concluded that challenging the extent of sentence reductions under Rule 35(b) would be frivolous, and there is no principled basis to distinguish sentence reductions given under Rule 35(b) from those given under § 3553(e). U.S. v. Spann, 682 F.3d 565 (7th Cir. 2012).
7th Circuit finds no evidence that judge did not understand authority to depart. (860) Defendant entered the U.S. from her native Nigeria with 80 pellets of heroin in her stomach. At sentencing, she argued for a downward departure premised on her belief that after completing her sentence she would be deported to Nigeria and imprisoned again for the same conduct. Degree 33 of Nigeria’s National Drug Law Enforcement Agency subjects any Nigerian citizen who is convicted of a drug offense abroad and thereby “brings the name of Nigeria into disrepute” to five years’ imprisonment and forfeiture of all assets and property. The district court declined to depart, and the Seventh Circuit dismissed defendant’s appeal, rejecting defendant’s claim that the court erroneously believed that it lacked authority to depart. First, the court used no language that would evidence a belief that it could not depart. It did not explicitly assert that it lacked authority, nor did it express doubt as to its authority to depart. In fact, the court evidenced its belief that it had discretion by referring to Koon’s categories of sentencing factors: the court noted that defendant’s future punishment was not a prohibited factor like race or national origin. The comments cited by defendant should be read in the context of the judge’s other statements to the effect that Nigeria’s laws were for Nigeria alone, and that defendant’s prospect of future imprisonment in Nigeria was not the concern of a U.S. court. U.S. v. Abimbola-Amoo, 390 F.3d 937 (7th Cir. 2004).
7th Circuit rejects challenge to refusal to depart where request was never made in district court. (860) Prior to trial defendant filed a motion to dismiss the indictment based on the affirmative defense of entrapment by estoppel, claiming numerous injuries caused by the government to the collective psyche of his Indian tribe. The court denied the motion, and ruled that it would not permit such a defense to be presented to the jury at trial. Prior to sentencing, defendant moved for a downward departure citing the totality of the circumstances, including the hardships he had endured throughout his life. The district court refused to depart. Defendant appealed, contending that the district court’s pre-trial ruling barring his entrapment defense de facto prevented him at sentencing from arguing that his “cultural heritage” was grounds for a downward departure. The Seventh Circuit found no error. Defendant did not make his cultural heritage argument to the district court at sentencing. Defendant could not argue on appeal that the district court failed to consider sentencing factors that it was never asked to consider. The district court’s refusal to grant a departure based on the totality of the circumstances was not reviewable. There was no indication in the record that the court was acting with a mistaken understanding that it was unable to downwardly depart from the guidelines or precluded from considering defendant’s arguments. U.S. v. Borrego, 388 F.3d 66 (2d Cir. 2004).
7th Circuit cannot review refusal to depart based on finding that defendant did not suffer from reduced mental capacity. (860) Defendant challenged the district court’s refusal to grant him a downward departure under § 5K2.13 for diminished mental capacity. The Seventh Circuit found that it lacked jurisdiction to review the refusal to depart. The record left no doubt that the principal basis on which the court denied defendant’s departure motion was the lack of sufficient proof that he actually suffered from a significantly reduced mental capacity at the time of the underlying offense. The determination that the record did not adequately support the assertion that defendant suffered from a significantly reduced mental capacity at the time of his offense was a discretionary, merits-based determination that falls outside of appellate jurisdiction. U.S. v. Zuniga-Lazaro, 388 F.3d 308 (7th Cir. 2004).
7th Circuit holds that it lacked jurisdiction to review refusal to depart downward for physical impairment. (860) Defendant requested a downward departure because of extraordinary physical impairment. The district court denied the motion, and the Seventh Circuit affirmed, since the sentencing transcript left no doubt that the district court was aware of its legal authority to depart. The transcript made clear that the court understood that it had the power to depart downward but determined that the Bureau of Prisons was better suited to give defendant the care that he needed. U.S. v. Dowell, 388 F.3d 254 (7th Cir. 2004).
7th Circuit says failure to sua sponte depart downward not in error. (860) Defendant argued that the district court should have granted a downward departure to no prison time as a remedy for what he saw as police misconduct. The alleged misconduct consisted of the officers’ possibly faulty estimate of the time at which they confirm that a license plate was registered to defendant and at which a canine unit arrived at a hotel to conduct a drug sniff of defendant’s car. The Seventh Circuit had “serious doubts about whether police misconduct that did not have any effect on the nature of the offense or the individual offender would ever be a permissible ground for departure.” Moreover, a district court’s failure to depart downward sua sponte is not erroneous. U.S. v. Washburn, 383 F.3d 638 (7th Cir. 2004).
7th Circuit lacks jurisdiction where court was aware of authority to depart. (860) Defendant requested a downward departure, claiming that his later diagnosed mental illness caused him to cease cooperating with the authorities, thus causing him to lose safety valve protection. The Seventh Circuit found that it lacked jurisdiction to review the district court’s refusal to depart because the judge fully understood that he had the authority to depart, but chose not to depart. The court expressed the view that such a departure would have been proper if defendant had fully resumed cooperation with the government after he was restored to competency. The court further commented that a departure without such continued cooperation would be unjustified. This is precisely the type of discretionary decision that an appellate court lacks jurisdiction to review. U.S. v. Bonsu, 336 F.3d 582 (7th Cir. 2003).
7th Circuit holds that court was aware of authority to depart. (860) Defendant sought a downward departure based on his deportable alien status. The district court in a summary ruling stated that it “considered and denied” defendant’s motion. On appeal, defendant argued that it could not be determined from this ruling whether the court recognized it had the authority to depart, but declined to do so, or whether it thought it lacked the authority to depart at all. The Seventh Circuit held that the decision was not reviewable because the court was aware of its authority to depart. The court’s ruling may have been brief, but it was clear. The court stated that it “considered” defendant’s motion before denying it. This was evidence that it recognized its authority, but declined to exercise its discretion here. U.S. v. Egwaoje, 335 F.3d 579 (7th Cir. 2003).
7th Circuit holds that finding that defendant was not entitled to departure was not reviewable. (860) Defendant pled guilty to wire fraud. He sought a downward departure under U.S.S.G. § 5K2.0, arguing that the $8.7 million portion of the intended loss would have been impossible to achieve because it involved a government sting operation. The district court refused to depart, finding “it is not unreasonable to conclude that intended loss of an additional eight million dollars was contemplated by the defendant and that a loss based on the additional eight millions dollars is not impossible or fanciful.” This statement revealed that the court recognized it could depart, but refused to depart because it made the factual determination that the intended loss in this case was not impossible. The Seventh Circuit held that it lacked jurisdiction over this issue. Moreover, the court had a separate and independent reason for refusing to depart downward. The court also stated that even if the loss was impossible, it would not grant a downward departure because “based on the defendant’s criminal history, particularly his recent criminal history at an advanced age, that it would not be the appropriate exercise of this court’s discretion to grant such a downward departure.” This alternative reason for refusing to depart was an exercise of the court’s discretion that was not reviewable on appeal. U.S. v. Aron, 328 F.3d 938 (7th Cir. 2003).
7th Circuit cannot review refusal to depart based on alleged sentencing disparities. (860) Defendants argued that the district court erred because it declined to grant a downward departure based on disparities between sentences imposed in the Western District of Wisconsin and those imposed nationwide. Using data from the Sentencing Commission, defendants showed the average length of imprisonment for drug trafficking offenses in the Western District of Wisconsin was about 70% greater than the national mean length of imprisonment for drug trafficking offenses. The Seventh Circuit held that it lacked jurisdiction to review the issue. The judge did not refuse to depart because she believed that she could not. Rather, the judge reviewed the numbers and offered criticisms. She also recognized that the small size of the Western District of Wisconsin skewed the results. The judge never once indicated or even insinuated that she believed she could not depart on the basis of sentencing disparities. U.S. v. Fudge, 325 F.3d 910 (7th Cir. 2003).
7th Circuit holds that defendant waived the right to challenge sex offender treatment program. (860) At sentencing, the judge stated, “The defendant shall participate in an approved sex offender treatment program, including periodic progress as directed by the probation office.” (emphasis added). The written judgment stated, “The defendant shall participate in a program of treatment for sex offenders, including periodic polygraph examinations, as directed by the probation officer.” (emphasis added). The Seventh Circuit rejected defendant’s challenge to the condition, since he waived, as part of his plea agreement, the right to appeal his conviction or the sentence imposed by the judge. His attempt to dress his collateral attack in the guise of a modification of supervised release must fail. Allowing him to challenge the sentence in this manner would gut the effectiveness of most waivers of appeal and waivers of collateral attack. The panel also rejected defendant’s claim that the requirement to take periodic polygraph examinations as part of a sex offender treatment program was not part of his original sentence. It was likely that the discrepancy between the court’s oral pronouncement requiring “periodic progress” and the written judgment requiring “periodic polygraphs” was merely a transcription error. However, even if not, periodic polygraphs are merely a means of evaluating progress and thus, the written judgment was simply a more specific rendering of the pronouncement at the hearing. U.S. v. Sines, 303 F.3d 793 (7th Cir. 2002).
7th Circuit rejects departure based on illness allegedly contracted while in jail. (860) While in jail, defendant developed a serious respiratory problem that resulted in two hospitalizations and the surgical removal of one lung. The district court rejected defendant’s request for a downward departure, finding that “unless there is some indication that the Bureau of Prisons is not capable of attending to any particular health needs … that is not a grounds [sic] for departure. It makes no difference to this Court nor to the guidelines that any illness or ailment was contracted pretrial or during trial.” Since the court found that the Bureau of Prisons could provide defendant with the needed medical care, and exercised its discretion to deny him a downward departure, the Seventh Circuit ruled that it had no jurisdiction to review the decision in that context. However, the district court addressed his illness only in light of U.S. v. Sherman, 53 F.3d 782 (7th Cir. 1995), which authorized departures where needed medical care would not be available if incarcerated. The court did not consider whether the circumstances of defendant’s illness provided a ground for departure outside of Sherman. Defendant argued that the seriousness of his illness and the fact that he contracted it while in federal custody took his case outside of the guidelines’ heartland. However, in order for his illness to constitute additional punishment for his offense, defendant had to show that the government somehow caused the illness, either through negligence or by design. Defendant failed to provide such evidence. U.S. v. Hirsch, 280 F.3d 811 (7th Cir. 2002).
7th Circuit says government did not breach agreement by recommending sentence at top of guideline range. (860) Defendant was originally convicted of two counts of assaulting a federal officer, and received concurrent 36-month sentences. Because certain evidence was improperly excluded, the case was remanded for retrial. Before retrial, defendant pled guilty to one count of simple assault. In exchange for the plea, the government agreed to dismiss the original charges and recommend an acceptance of responsibility reduction. This resulted in a guideline range of 6-12 months. If defendant had not received the two-point acceptance reduction, his guideline range would have been 12-18 months. At the government’s recommendation, the district court imposed a 12-month term, the statutory maximum penalty. The Seventh Circuit held that it lacked jurisdiction to consider defendant’s claim that the court abused its discretion by sentencing defendant to the statutory maximum penalty. Absent an error of law or misapplication of the guidelines, there is no appellate jurisdiction over a district court’s choice of a sentence within an otherwise correct range. Although defendant claimed he received no credit for acceptance of responsibility, he quite clearly did receive the reduction, which reduced his guideline range from 12-18 months to 6-12 months (although, given the 12-month statutory maximum, it did not reduce his sentence). The government did not breach the plea agreement by requesting a 12-month sentence. The agreement did not bind the government to recommend a particular sentence with the guideline range. U.S. v. Byrd, 263 F.3d 705 (7th Cir. 2001).
7th Circuit upholds sentence that exceeded defendant’s life expectancy. (860) Defendant argued that his 8th Amendment rights were violated when the district court denied his motion for a downward departure and sentenced him to 352 months (29.33 years), a sentence exceeding his life expectancy of 16.96 years. Defendant claimed that his sentence was imposed in violation of 21 U.S.C. § 841(b)(1)(C), which states that “a person shall be sentenced to a term of not … more than life.” Defendant argued that any sentence in excess of his life expectancy was more than life, and therefore prohibited under the statute. The Seventh Circuit rejected this argument. The case cited by defendant, U.S. v. Martin, 63 F.3d 683 (7th Cir. 2001) (stating that where a statute bars a life sentence, sentence for a term of years that exceeds a defendant’s life expectancy constitutes an abuse of discretion), applies only in limited circumstances not applicable here. U.S. v. Spiller, 261 F.3d 683 (7th Cir. 2001).
7th Circuit finds judge was aware of discretion to make § 5K1.1 departure at second resentencing. (860) Defendant originally had a guideline range of 360 months to life. The judge granted the government’s § 5K1.1 motion, and imposed a 300-month sentence. He successfully appealed his career offender status. At resentencing, the district court found that the new guideline range was 235 to 293 months. The court again departed downward under § 5K1.1, and imposed a 210-month sentence. Defendant later moved for resentencing under 18 U.S.C. § 3582(c)(2) based on a guideline amendment that changed the weight equivalency of a marijuana plant from 1000 grams to 100 grams. At the second resentencing, the district court found that defendant’s new guideline range was 151 to 188 months, and the court imposed a 188-month sentence. Defendant argued that the district court erred by failing to consider the government’s § 5K1.1 motion, and did not understand that it had the authority to grant a departure at the second resentencing. The Seventh Circuit disagreed. Although the judge never stated that she considered the § 5K1.1 motion in connection with the second resentencing, there was nothing in the record to suggest that she believed that she did not have the authority to depart. Article III judges are presumed to know the law. The judge had in fact exercised this discretion by granting § 5K1.1 departures on two previous occasions in this same case. U.S. v. Atkinson, 259 F.3d 648 (7th Cir. 2001).
7th Circuit holds that sentence at top of guideline range dispelled ambiguity about judge’s refusal to depart. (860) Defendant argued that the district judge erroneously believed that he lacked authority to sentence her below the applicable guideline range, and would have granted her a downward departure if he had recognized the extent of his discretion. The Seventh Circuit found this argument implausible, since the judge did not act as if constrained to sentence defendant to a longer term than the judge believed appropriate. Defendant had a guideline range of 33-41 months, and the court imposed a 40-month sentence, almost the top of the range. A judge who preferred to depart but thought the legal rules blocked such a step would sentence the defendant at the bottom of the available range. The sentence at the top of the guideline range dispelled any ambiguity as to the judge’s ruling. U.S. v. Buckowich, 243 F.3d 1081 (7th Cir. 2000).
7th Circuit rules it lacked jurisdiction to review refusal to depart based on diminished capacity. (860) Defendant moved for a downward departure under § 5K2.13 based on a diminished mental capacity at the time of the offense. After an evidentiary hearing, at which the court heard testimony from experts called by defendant and the government, the court concluded that a downward departure was not warranted. Defendant sought review of this decision. The Seventh Circuit held that it lacked jurisdiction to review the district court’s refusal to depart. In U.S. v. Dyer, 216 F.3d 568 (7th Cir. 2000), the court held that the decision to make a mental capacity departure is committed entirely to the discretion of the district court. As such, the district court had no obligation to determine how far defendant’s mental illness contributed to his criminal action. Section 5K2.13 is permissive rather than mandatory. Thus, “even if the judge finds that defendant committed the offense while afflicted with a significantly reduced mental capacity, he is not required to reduce the defendant’s sentence; he is merely authorized to do so, and his exercise of that authority is unreviewable.” U.S. v. Crucean, 241 F.3d 895 (7th Cir. 2001).
7th Circuit rules court was aware of authority to depart downward. (860) Based on “his advancing age, debilitated condition, and full and honest cooperation,” defendant requested a downward departure, not only from the 151-181 month guideline range, but also from the 120-month mandatory minimum sentence required by 18 U.S.C. § 841(b)(1)(A)(viii). The district court found that it could not go below the mandatory minimum unless the government made a substantial assistance motion under 18 U.S.C. § 3553(e) or defendant qualified for safety valve protection under § 3553(f). In considering §§ 5H1.1 and 5H1.4, the court further found that defendant’s age was not so advanced as to warrant a downward departure, and that defendant had failed to present any evidence of an extraordinary physical impairment that might provide an alternative basis for departure from the 151-181 month guideline range. The Seventh Circuit held that the district court properly understood its discretion to depart from the guidelines, and its decision not to depart was not reviewable. The judge’s statement that “under the facts of this case, I don’t see where I have that authority [to depart downward]” did not reflect a misunderstanding of the court’s ability to depart under appropriate circumstances. The record as a whole showed that the court fully understood it had the authority to depart, but found that defendant did not meet the departure standards. U.S. v. Crickon, 240 F.3d 652 (7th Cir. 2001).
7th Circuit has no jurisdiction to review refusal to depart. (860) Defendant was convicted of being a felon in possession of a firearm. He argued that the court should have departed downward because the Indiana code at the time of his arrest permitted a convicted felon to possess a firearm in his home. The Seventh Circuit held that the failure to depart was not reviewable. The only time a refusal to depart is reviewable is when the court erroneously concludes that it did not have authority for such a departure. Defendant did not argue that this was the case, and nothing in the record indicated that the court labored under such an erroneous interpretation. U.S. v. Ofcky, 237 F.3d 904 (7th Cir. 2001).
7th Circuit holds that court properly understood authority to make physical impairment departure. (860) The district court rejected defendant’s request for a downward departure under § 5K2.13 (diminished capacity) and under § 5H1.4 (extraordinary physical impairment). Defendant contended that the district court misunderstood the law, since the court stated that defendant was not suffering from an extraordinary physical condition “at the time of the offense.” Section 5H1.4 does not require that the defendant have suffered a physical impairment at the time of the offense; however, § 5K2.13 does require that the diminished capacity occur at the time of the offense. The Seventh Circuit ruled that the district court correctly understood its authority to depart, and thus, the decision was not reviewable. Defendant provided the court with a memo that separately discussed his diminished capacity claim and his physical impairment claim. At sentencing, the court allowed defense counsel to address the departure motions. At no time did defense counsel present evidence regarding why defendant’s physical condition would preclude him from being incarcerated and cared for properly by the Bureau of Prisons. Therefore, it would have been improper for the district court to grant a departure on this basis. Although the court might have conflated to some extent defendant’s two departure motions, this confusion did not necessarily indicate that the court did not understand its authority to depart. In other portions of his statement, the judge clearly acknowledged the distinct nature of the two departure requests. U.S. v. Albarran, 233 F.3d 972 (7th Cir. 2000).
7th Circuit holds that improper criminal history point may have affected court’s departure decision. (860) The district court improperly assessed a criminal history point. The point did not affect defendant’s criminal history category because his other convictions already had placed him in Category II. Defendant challenged the district court’s refusal to depart downward. Although such claims are ordinarily not reviewable on appeal, the Seventh Circuit found that the erroneous assessment may have affected the district court’s departure decision. Because it could not be certain that the error that led to the assessment of the extra point did not also affect the court’s departure decision, the panel vacated and remanded for resentencing. U.S. v. Vargas, 230 F.3d 328 (7th Cir. 2000).
7th Circuit cannot review where court found family circumstances not extraordinary. (860) The district court rejected defendant’s request for a downward departure based on his family responsibilities, stating that defendant had not shown that his situation was anything but typical. The Seventh Circuit held that it lacked jurisdiction to review the refusal to depart. Under § 5H1.6, family ties and responsibilities are not ordinarily relevant in determining the defendant’s sentence. However, unusual and extraordinary family circumstances may justify a downward departure. Here, the court understood it had the power to grant a downward departure for family responsibilities, specifically addressed the request and refused to grant it. Because the decision was within the court’s discretion, and not in violation of the law or an incorrect application of the guidelines, it was not reviewable. U.S. v. Johnson, 227 F.3d 807 (7th Cir. 2000).
7th Circuit cannot review failure to grant downward departure. (860) Defendant argued that the district court erroneously failed to grant him a downward departure based on his age, family circumstances, and the hardship faced by his family because of his status as an illegal alien. Although defendant failed to request such departures before the sentencing court, he claimed that the appellate court could nevertheless review his claim under a plain error standard. He also alleged that his failure to request these departures resulted from the ineffective assistance of his trial counsel and that the appellate court should consider this claim on appeal. The Seventh Circuit found both claims meritless. A district court’s decision not to depart downward is reviewable on appeal only if the district court’s conclusion is based on a legal interpretation of the Sentencing Guidelines. Defendant did not challenge the court’s legal conclusions, nor was there any indication that the district court did not believe it had the discretion to depart. A court’s discretionary decision not to depart is not subject to appellate review. In addition, although the record clearly reflect that defendant’s counsel did not ask for the downward departures, the record did not reveal the circumstances surrounding that decision or the strategic concerns that may have motivated it. U.S. v. Cruz-Velasco, 224 F.3d 654 (7th Cir. 2000).
7th Circuit lacks jurisdiction to review refusal to depart based on family ties and community status. (860) Defendant argued that the court abused its discretion by not granting him a downward departure based on his family circumstances and employment. After reviewing precedent delineating the boundaries of the family circumstances and employment departures, the Seventh Circuit concluded that it lacked jurisdiction to review the court’s decision not to grant a downward departure. The district court correctly recognized that it had the authority to depart based on family and employment circumstances. However, although defendant’s situation was deeply sympathetic, the court denied the departure because his situation was similar to previous situations in which downward departures were denied. The district court employed the correct methodology. Since the court correctly understood its authority to depart, the appellate court lacked jurisdiction to second-guess the district court’s decision not to depart. U.S. v. Jaderany, 221 F.3d 989 (7th Cir. 2000).
7th Circuit has no jurisdiction to review claim that court should have been more lenient. (860) Defendant and his co-conspirators were convicted of impersonating an IRS agent. He argued that he should receive a shorter sentence for this offense than his co-defendants received, since he did not personally impersonate an IRS agent, but pled guilty solely because he was accountable for the actions of his co-defendants. However, defendant did not argue that his sentence was either a violation of law or an incorrect application of the guidelines. He merely argued that the court should have been more lenient. Section 3742 does not confer appellate jurisdiction to review a defendant’s claim that he was sentenced differently from his co-defendants for the same criminal conduct. See U.S. v. Hall, 212 F.3d 1016 (7th Cir. 2000); U.S. v. Edwards, 945 F.2d 1387 (7th Cir. 1991). Thus, the Seventh Circuit found that it had no jurisdiction to review defendant’s claim that he should have been treated differently than his co-defendants. U.S. v. Coe, 220 F.3d 573 (7th Cir. 2000).
7th Circuit says judge may refuse to depart without determining how mental illness contributed to crime. (860) Defendant was manic depressive and had frequent manic episodes during the five years that he operated a Ponzi scheme. The judge refused to grant defendant a downward departure under § 5K2.13 for a significantly reduced mental capacity. Defendant argued that once the judge found that defendant suffered from a serious mental illness during the period in which the crime was committed, the judge was required to determine how far that illness “contributed” to the crime and to depart under § 5K2.13 accordingly. The Seventh Circuit found nothing in § 5K2.13 imposed such a burden on the judge. The guideline is permissive rather than mandatory. Thus, even if a judge finds that the defendant committed the offense while afflicted by a significantly reduced mental capacity, he is not required to reduce the defendant’s sentence; he is merely authorized to do so. The exercise of that authority is unreviewable. U.S. v. Dyer, 216 F.3d 568 (7th Cir. 2000).
7th Circuit lacks jurisdiction to review failure to make substantial assistance departure. (860) Defendant claimed he was entitled to a substantial assistance departure because he provided information about Sherard’s drug distribution conspiracy as well as information concerning a murder in Green Bay. The district court denied the motion because it found that defendant did not provide any information that the government did not already have. The court reached this conclusion because defendant did not cooperate with the government until “substantially late in the game,” and, by that time, the government had already arranged for several other co-defendants to testify against Sherard. The judge also found that the information defendant provided regarding a murder in Green Bay had not yet proven to be useful. By making this finding, the district court simply exercised its discretion and determined that defendant did not qualify for a downward departure under § 5K1.1. Because the exercise of discretion is not reviewable on appeal, the Seventh Circuit ruled that it had no jurisdiction to consider defendant’s appeal. U.S. v. Milquette, 214 F.3d 859 (7th Cir. 2000).
7th Circuit holds that court made discretionary decision not to depart. (860) Aliens who reenter the country after deportation following conviction for an aggravated felony receive an enhanced sentence under § 2L1.2(b) (1)(A). Note 5 to § 2L1.2 permits a downward departure based on the seriousness of the aggravated felony if certain conditions are met, including that the offense was not a crime of violence. Defendant contended that the district court found him ineligible for a departure because the judge improperly concluded that his prior offense of sexual misconduct with a minor was a crime of violence. The Seventh Circuit noted that if the district court had gone behind the charging papers to conclude that defendant had committed a crime of violence, then the decision would be problematic. See U.S. v. Shannon, 110 F.3d 382 (7th Cir. 1997), abrogation recognized by U.S. v. McDonald, 592 F.3d 808 (7th Cir. 2010). If, however, the judge looked at the additional information only to determine whether it was appropriate to exercise discretion in defendant’s favor, then there was no legal impediment. Under Shannon, the judge need not stick to the charging papers when exercising such discretion with respect to departures. The panel concluded that judge did not find that defendant’s prior conviction was for a crime of violence; instead the judge exercised discretion against defendant. U.S. v. Chavez-Chavez, 213 F.3d 420 (7th Cir. 2000).
7th Circuit has no jurisdiction where district court aware of authority to depart. (860) Defendant argued that the district court should have granted him a downward departure under § 5H1.4 because he had an extraordinary physical impairment that would make him vulnerable to attack in prison, and under § 5K2.0 because his conduct was a single instance of aberrant behavior. The Seventh Circuit found that the district court clearly understood that it had the authority to depart for the reasons requested by defendant. The record reflected the district court’s comprehension of the relevant legal standards and its application of them to the facts of the case. Therefore, the appellate court lacked jurisdiction to review the district court’s discretionary decision not to depart. U.S. v. Williams, 202 F.3d 959 (7th Cir. 2000).
7th Circuit refuses to infer judge was unaware of authority to depart. (860) At sentencing, defendant never specifically requested that the judge consider a downward departure. Despite this failure, defendant argued that the judge did not know that he had the authority to depart downward. The judge, while discussing a sentencing enhancement under § 2J1.6, stated whether the underlying charge “was dismissed or not does not make any difference, unless you have some authority to the opposite.” The Seventh Circuit refused to infer from this statement that the judge was unaware of its authority to depart. In fact, an appellate court will presume the opposite is true: “[A] claim that a seasoned judge … didn’t understand his discretion will rarely, if ever, be successful when built merely on inference. Article III judges are presumed to know the law….” An appellate court is precluded by statute from reviewing discretionary refusals to downwardly depart. U.S. v. Blackman, 199 F.3d 413 (7th Cir. 1999).
7th Circuit finds no authority to review refusal to depart. (860) Defendant argued that the district court refused to make a criminal history departure because it erroneously concluded that once it had elected to depart downward under § 5K1.1, it had no legal authority to depart further under another section of the guidelines. While the district court did express its doubts concerning its ability to depart further once it had departed under § 5K1.1, it was apparent from the record that the court did not rely on this legal conclusion in refusing to depart further. Instead, the court clearly stated that even if it were able to depart further under § 4A1.3, it would not have done so in this case because defendant’s criminal history category adequately reflected the seriousness of his criminal history. Thus, the Seventh Circuit found it had no authority to review the refusal to depart. U.S. v. Williams, 198 F.3d 988 (7th Cir. 1999).
7th Circuit does not consider refusal to depart. (860) Defendant argued that the district court erred by not granting his request for a downward departure. Because a reading of the sentencing hearing transcripts made it clear and unambiguous that the judge recognized his authority to depart from the guidelines and merely declined to exercise his discretion to depart, the Seventh Circuit did not consider this issue further. U.S. v. Payton, 198 F.3d 980 (7th Cir. 1999).
7th Circuit upholds 30-year sentence even though it effectively amounted to life sentence. (860) At the time of sentencing, defendant was 67 years old and claimed to be in poor health. He argued that he should not have been given what was in effect a life sentence (180 months) when the guidelines did not call for a mandatory life sentence. The Seventh Circuit found that defendant’s claim was, in essence, a challenge to the district court’s refusal to depart. The district court took into consideration defendant’s age and bad health when considered whether to depart, and decided that his circumstances did not warrant one. The court then sentenced defendant in the middle of his guideline range. An appellate court has no jurisdiction to review a discretionary decision not to depart, or a discretionary decision to sentence at the middle rather than the low end of the guideline range. The court clearly considered all of defendant’s submissions concerning his age and poor health and reasonably took them into account when choosing the appropriate sentence. U.S. v. Robbins, 197 F.3d 829 (7th Cir. 1999).
7th Circuit has no jurisdiction to review refusal to depart for overstated loss. (860) Note 7(b) to § 2F1.1 applies to fraudulent loan application cases and provides that when the loss significantly understates or overstates the seriousness of the defendant’s conduct, an upward or downward departure may be warranted. The Seventh Circuit held that it lacked jurisdiction to review the district court’s refusal to depart under note 7(b). Defendant did not challenge the district court’s valuation of loss but simply claimed that the court erred in failing to depart downward under note 7(b). An appellate court lacks jurisdiction to review a district court’s discretionary refusal to grant a downward departure. Appellate courts will presume that a district court knew it had authority to depart downward and simply exercised its discretion not to do so. The defendant bears the burden of rebutting this presumption. Defendant failed to offer any rebuttal evidence and in fact, defense counsel conceded at oral argument that the district judge knew he had the ability to depart under note 7(b). U.S. v. Hegge, 196 F.3d 772 (7th Cir. 1999).
7th Circuit says court was aware of ability to depart from career offender guideline. (860) Defendant argued that the district court should have departed downward from the career offender guideline, and that the appellate court had the authority to review the decision because the district court believed it did not have the authority to depart downward. The Seventh Circuit disagreed. Although at one point the district court said that the departure provisions did not provide an “escape mechanism” from the otherwise applicable career offender provisions, other statements by the court made it clear that the court understood it could depart if the facts warranted it. The discretionary denial of a request for a downward departure is not reviewable on appeal unless that refusal was based on the court’s erroneous belief that it was without the power to make the requested departure. U.S. v. Jackson, 189 F.3d 655 (7th Cir. 1999), overruled on other grounds, U.S. v. Ceballos, 302 F.3d 679 (7th Cir. 2002).
7th Circuit says judge exercised discretion not to grant diminished capacity departure. (860) Defendant argued that she should have received a § 5K2.13 diminished capacity departure because she was dependent on her abusive husband, which made her incapable of controlling her behavior. The Seventh Circuit did not review because it found that the district court knew it had the legal authority to depart, but chose not to do so. The judge found that defendant did not have diminished capacity, because the evidence showed that defendant had a strong personality, possessed an impressive business acumen, and was the main decision-maker in her family. The court did not ignore the volitional aspect of § 5K2.13. Although some of the court’s comments indicated it was focusing on the cognitive aspect of significantly reduced mental capacity, the court’s written order denying defendant’s motion for a stay of imprisonment stated that the judge did not believe defendant’s “ability to control her behavior was impaired or that it was her husband who directed her to file false tax returns.” U.S. v. Thomas, 181 F.3d 870 (7th Cir. 1999).
7th Circuit rejects departure because defendant did not disclose his offense to authorities. (860) Defendant purchased products for his employer at vastly inflated prices from a company owned by his relatives. Defendant received kickbacks equal to one third of the company’s gross profits. When auditors for the employer finally questioned defendant, he admitted the scheme. The employer sued defendant and his relatives. The government, alerted to the lawsuit by a newspaper article, decided to prosecute defendant. Section 5K2.16 permits a downward departure if “the defendant voluntarily discloses to authorities the existence of, and accepts responsibility for, the offense prior to the discovery of such offense.” The Seventh Circuit held that § 5K2.16 was inapplicable because defendant did not disclose his offense to authorities, as § 5K2.16 explicitly requires, but to company officials. Also, the statute speaks merely of discovery of the offense, and not of discovery of the offense by authorities. An offense is “discovered” under § 2F1.1 when it is known by the victim or the proper authorities, whichever comes first. U.S. v. Ekeland, 174 F.3d 902 (7th Cir. 1999).
7th Circuit will not review refusal to depart where nothing extraordinary about defendant’s restitution. (860) Defendant purchased products for his employer at vastly inflated prices from a company owned by his relatives. Defendant received kickbacks equal to one third of the company’s gross profits. When auditors for the employer finally questioned defendant, he admitted the scheme. The employer sued defendant and his relatives, winning a judgment of $1.7 million. Defendant argued that his cooperation went beyond mere acceptance of responsibility and deserved a downward departure. The district court found nothing extraordinary about defendant’s restitution; he was simply required to liquidate some of the many assets he acquired during the 12-year fraud scheme. The Seventh Circuit held that it lacked jurisdiction to review the district court’s refusal to depart. U.S. v. Ekeland, 174 F.3d 902 (7th Cir. 1999).
7th Circuit will not review refusal to make family circumstances departure. (860) Defendant argued that the district court erred by denying her motion for a § 5H1.6 departure based on her “extraordinary family circumstances.” Defendant had a 1 1/2 year-old child, and, at the time of sentencing, was eight months pregnant. She also cared for two step-children, ages seven and five. The district court acknowledged that sentencing defendant to prison would impose hardship on her family because of her responsibilities, but also noted that a person should not expect to avoid incarceration simply because he or she comes from a large family. The Seventh Circuit refused to review the matter, since it was clear that the judge understood that he had the power to order a downward departure if the facts warranted it, and that he considered all of the issues that the defendant thought relevant. Because defendant had no legal challenge to the district court’s interpretation of the guidelines, there was nothing to review. U.S. v. Guy, 174 F.3d 859 (7th Cir. 1999).
7th Circuit refuses to grant inmate departure based on threats from victim. (860) Defendant, a federal prison inmate, stabbed another inmate in the head and neck with five sharpened pencils bound together with tape. Defendant claimed that before the incident, the victim and his friends had been pressuring him to perform oral sex on them. Defendant refused to comply. He claimed he did not report the victim’s threats to prison officials because he did not want to be labeled a snitch or placed in segregation. Section 5K2.10 permits a departure if the victim’s wrongful conduct contributed significantly to provoking the offense. The district court refused to depart, stating that an inmate’s concern that prison officials would not take him seriously and would place him in segregation was not a sufficient reason for not reporting the incident. Responding with violence is not an acceptable option. Defendant argued that the court’s comments indicated an unconstitutional policy of depriving inmates equal protection under the law. The Seventh Circuit disagreed. First, prisoners are not a suspect class entitled to heightened equal protection scrutiny. Second, the decision not to depart was well within the court’s discretion and was not reviewable on appeal. U.S. v. Vahovick, 160 F.3d 395 (7th Cir. 1998).
7th Circuit cannot review discretionary refusal to depart downward based on age. (860) Defendant challenged the district court’s denial of a departure based on his age. The Seventh Circuit held that it lacked discretion to review the refusal to depart. The district court specifically stated that although it might have discretion to grant a downward departure on the basis of defendant’s age pursuant to § 5H1.1, it was not merited in this case. It was within the court’s discretion to refuse to make the downward departure. U.S. v. Mattison, 153 F.3d 406 (7th Cir. 1998).
7th Circuit cannot review judge’s refusal to depart based on disparate treatment. (860) Defendants contended that the trial judge wrongly believed that he lacked the ability to depart because of the defendants’ disparate treatment compared to other participants in their fraud schemes. The Seventh Circuit disagreed. These other participants cooperated with the government and the judge stated that a downward departure would undermine efforts to reward individuals for cooperating with the government. Although the judge did comment on congressional intent to limit the discretion of judges, the judge explained his refusal, as opposed to his inability, to depart. The judge’s exercise of his discretion barred appellate review. U.S. v. Mankarious, 151 F.3d 694 (7th Cir. 1998).
7th Circuit cannot review refusal to depart for age, physical condition and criminal history. (860) Defendant argued that the district court abused its discretion in failing to depart downward based on the fact that (1) he was 58 years old, (2) he had liver disease, and (3) his prior criminal convictions were in 1973 and 1986. The Seventh Circuit held that it was without jurisdiction to review the discretionary refusal to depart. Defendant did not claim that the court imposed his sentence in violation of the law or as a result of an incorrect application of the guidelines. U.S. v. Schwensow, 151 F.3d 650 (7th Cir. 1998).
7th Circuit cannot review refusal to make family circumstances departure. (860) Defendant argued that the district court abused its discretion when it refused to grant her a downward departure for “extraordinary family circumstances” under § 5H1.6. She had two young children who faced hardship from the loss of their mother. The Seventh Circuit held that it had no discretion to review the court’s refusal to depart. The record was clear that the court carefully considered her § 5H1.6 motion and the evidence she submitted, and it chose not to exercise its admitted discretion to order a downward departure. U.S. v. Madoch, 149 F.3d 596 (7th Cir. 1998).
7th Circuit has no jurisdiction to review refusal to grant diminished capacity departure. (860) Defendant argued that the district court should have exercised its discretion under § 5K2.13 to grant a downward departure based on his diminished mental capacity. The Seventh Circuit found that it lacked jurisdiction to review the court’s exercise of its discretion. The court, after considering defendant’s argument on this point, did not find that his recently diagnosed condition of bipolar disorder warranted a departure. Defendant conceded that the court did not mistakenly perceive a limitation on its ability to depart. Rather, the court did not find his factual support for the motion to be persuasive. U.S. v. Newman, 148 F.3d 871 (7th Cir. 1998).
7th Circuit has no jurisdiction to review discretionary refusal to depart. (860) Defendant contended that the district court should have exercised its discretion to depart downward from § 4A1.3 because his criminal history category significantly overstated his likelihood to commit further crimes. He presented testimony at sentencing in an attempt to prove that his gun possession was inadvertent. The Seventh Circuit found it had no jurisdiction to review the district court’s discretionary refusal to depart. This was not a case where the court erroneously believed that it had no power to make the requested departure. The record indicated that the court considered the evidence supporting defendant’s request for a departure but decided that departure was not warranted. U.S. v. Hillsman, 141 F.3d 777 (7th Cir. 1998).
7th Circuit has no jurisdiction to review decision not to depart. (860) Defendant was convicted of being a felon in possession of a firearm and sentenced as an armed career criminal. The district court rejected defendant’s request for a downward departure based on his mental health. The Seventh Circuit held that it lacked jurisdiction to review the refusal to depart downward. The district court read the report regarding defendant’s mental health but concluded that it did not provide a basis for departure. Instead, it concluded that defendant would benefit from medical treatment and that incarceration was necessary to protect the public, given defendant’s violent career history. Since the district court exercised its discretion under appropriate review of defendant’s past, the appellate court lacked jurisdiction to review the sentencing decision. U.S. v. Arellano, 137 F.3d 982 (7th Cir. 1998).
7th Circuit finds mid-range sentence shows court would not have departed under Note 14. (860) Defendant argued that the district court erred by not considering note 14 to § 2D1.1 in sentencing him. Note 14 says that in the absence of certain disqualifying factors, the court may consider a downward departure to offense level 36 if (1) the amount of controlled substance for which defendant is accountable results in a base offense level greater than 36, (2) the offense over-represents the defendant’s culpability, and (3) the defendant had a mitigating role in the offense. If the court had applied this Note, defendant would have had a sentencing range of 151-188 months. The Seventh Circuit found no merit in this argument, because defendant had a guideline range of 188-235 months and the court sentenced him to 200 months. There was no reason to believe that the judge thought defendant deserved a sentence of less than 188 months. Also, defendant never asked the judge to consider note 14, so the argument was waived absent plain error. U.S. v. Wilson, 134 F.3d 855 (7th Cir. 1998).
7th Circuit has no jurisdiction to review refusal to depart downward. (860) Defendant asked the appellate court to review the district court’s refusal to depart downward under § 4A1.3 on the ground that his Criminal History Category over-represented the seriousness of her criminal history, and under § 5H1.4 because of her medical problems. The Seventh Circuit held that the refusal to depart was not reviewable. The judge did believe he was without authority to depart. Rather, he simply did not credit defendant’s proffered justification for the departures. U.S. v. Jarrett, 133 F.3d 519 (7th Cir. 1998).
7th Circuit has no discretion to review discretionary refusal to depart. (860) Defendant argued that the district court erred in failing to grant her motion for a downward departure based on family circumstances. The Seventh Circuit held that it had no jurisdiction to review the claim. The district court’s statements at the sentencing hearing indicated that it knew it had authority to depart, but that, in its discretion, it did not believe the facts of the case warranted such a departure. U.S. v. Yoon, 128 F.3d 515 (7th Cir. 1997).
7th Circuit lacks jurisdiction to review refusal to make § 5H1.4 departure for defendant in wheelchair. (860) Defendant contended that the district court abused its discretion in denying her request for a downward departure based on her medical condition. Defendant had contracted polio at age 2 and had been confined to a wheelchair for more than 30 years. She also had several surgeries over the years to address other conditions attributable to the polio. While awaiting sentencing, defendant suffered a heart attack and underwent bypass surgery. She took several medications daily for high blood pressure and other ailments. The Seventh Circuit held that it lacked jurisdiction to review the refusal to depart since the district court plainly recognized that it had the authority to depart downward. The district court found that defendant’s condition was not sufficiently extraordinary to warrant a departure. U.S. v. Tyler, 125 F.3d 1119 (7th Cir. 1997).
7th Circuit upholds refusal to depart for family, employment and remorse. (860) Defendant argued that the district court erred in failing to consider the exceptional nature of his circumstances including his family, employment, remorse and acceptance of responsibility. The Seventh Circuit found that the district court properly understood its discretion to depart. Family and employment considerations are “discouraged” factors and therefore only warrant a departure in exceptional circumstances. Defendant’s family circumstances were not exceptional. Although defendant’s wife and three children would suffer during his incarceration, his children had a mother to look after them and loving grandparents to help her. Although the nature of defendant’s employment was strikingly meritorious (working with disabled children), the district court’s decision, was based on the correct standards, and was not reviewable. Defendant already received a 3-level reduction for acceptance of responsibility. The court did not mistakenly join remorse with acceptance of responsibility. The court refused to depart simply because it felt defendant’s remorse did not deserve an additional departure, not because it believed that departure was impermissible. U.S. v. Carter, 122 F.3d 469 (7th Cir. 1997).
7th Circuit has no jurisdiction to review failure to depart based on cooperation. (860) Defendant argued that the district court should have reduced his offense level by two because of his cooperation with authorities. The Seventh Circuit found it had no jurisdiction to review the matter since it was essentially a request for a downward departure. A discretionary refusal to depart is not reviewable on appeal. U.S. v. Jackson, 121 F.3d 316 (7th Cir. 1997).
7th Circuit finds refusal to depart was reviewable because based on legal conclusion. (860) After robbing two banks, defendant was overcome by guilt and turned himself in to authorities. Section 5K2.16 permits a downward departure where the defendant voluntarily discloses to authorities the existence of the offense prior to the discovery of the offense, and such offense was unlikely to have been discovered otherwise. The district court ruled that § 5K2.16 was inapplicable to defendant’s case because it applies to the voluntary disclosure of the offense, not the voluntary disclosure of the criminal who committed the offense. The Seventh Circuit held that the refusal to depart was reviewable because it was based on the court’s legal interpretation of § 5K2.16 rather than on the court’s exercise of discretion. The district court ruled that as a matter of law § 5K2.16 only applies to voluntary disclosures of the offense. Unfortunately for defendant, this conclusion was correct. Section 5K2.16 does not apply to individuals who simply confess their involvement in a crime already known to the authorities. U.S. v. Aerts, 121 F.3d 277 (7th Cir. 1997).
7th Circuit rules court need not consider factors listed in § 5K1.1 in refusing to depart. (860) Defendant pled guilty to unlawfully distributing firearms. The district court rejected the government’s § 5K1.1 motion for a substantial assistance departure, because by selling guns to gang members and drug dealers defendant had enabled “the worst kinds of crime.” Defendant argued that in refusing to depart, the district court improperly considered a myriad of factors unrelated to defendant’s cooperation, and did not consider any of the factors listed in § 5K1.1. The Seventh Circuit held that a court need not consider the factors listed in § 5K1.1 until after it has decided, in its discretion, whether a departure is appropriate. The decision whether to depart downward, even in the face of a substantial assistance motion by the government, is wholly within the discretion of the sentencing court. All of the parties were aware of that fact. Defendant acknowledged in his plea agreement that the decision to depart rested solely with the court. U.S. v. Winters, 117 F.3d 346 (7th Cir. 1997).
7th Circuit holds time limits in Rule 35(b) are jurisdictional. (860) On April 24, 1995, the court departed downward pursuant to the government’s § 5K1.1 motion and sentenced defendant to 233 months. On September 12, 1996, the government filed a motion for an additional downward departure pursuant to Rule 35(b) based on defendant’s post-sentencing cooperation. Although the government requested a 53-month departure, the court granted only a 12-month reduction. Defendant argued that the court abused its discretion by failing to reward him adequately for his post-sentencing cooperation and also considered improper factors in determining the extent of the departure. The Seventh Circuit held that § 3742 applies to appeals challenging the extent of a Rule 35(b) sentence reduction. Thus, it lacked jurisdiction to consider the extent of the departure. Moreover, the court lacked authority to consider the departure motion because it was untimely. Rule 35(b) permits the motion to be made “within one year after imposition of the sentence.” The one-year limit is jurisdictional and cannot be waived by the government. The only exception is where “the defendant’s substantial assistance involves information or evidence not known by the defendant until one year or more after imposition of sentence.” The exception was not applicable here. U.S. v. McDowell, 117 F.3d 974 (7th Cir. 1997).
7th Circuit rejects downward departure for crack defendants. (860) Defendants were convicted of a conspiracy to distribute crack cocaine. They claimed that they were entitled to downward departures based on the disparity in the way the guidelines treat crack and powder cocaine. The Seventh Circuit held that it lacked authority to review the matter since defendants did not show the judge was confused about his authority to depart. The fact that crack cocaine defendants receive enhanced penalties is not a sufficiently “atypical” or “unusual” circumstance to warrant a downward departure. Defendants did not show that their circumstances were different from other defendants convicted of conspiracy to distribute crack cocaine. U.S. v. Lewis, 117 F.3d 980 (7th Cir. 1997).
7th Circuit has no jurisdiction where court said “I choose not to depart.” (860) Defendant pled guilty to racketeering in connection with the operation of a car dealership. He argued that the district court should have departed downward because of the coercion and duress that he endured. The Seventh Circuit held that it had no jurisdiction to review the refusal to depart. The court clearly was aware of its authority to depart since it stated “I chose not to depart.” U.S. v. Zaragoza, 117 F.3d 342 (7th Cir. 1997).
7th Circuit upholds discretionary refusal to depart for mental condition. (860) Defendant pled guilty to distributing, receiving and possessing child pornography. He challenged the district court’s refusal to depart downward under § 5K2.0 or § 5K2.13. The Seventh Circuit held that the refusal to depart was not reviewable because the court considered defendant’s arguments for a departure and rejected them. The judge was fully aware of defendant’s mental condition and his efforts towards rehabilitation. The record as a whole showed that the judge knew he had discretion to depart on the basis of defendant’s mental condition, but found defendant was not atypical and thus did not deserve the departure. U.S. v. Black, 116 F.3d 198 (7th Cir. 1997).
7th Circuit refuses to review unsupported claim that failure to depart violated 8th Amendment. (860) Defendant argued that the district court erred when it did not depart downward on the basis of mitigating circumstances. The Seventh Circuit refused to review defendant’s unsubstantiated claim that the failure to depart violated the 8th Amendment. Defendant’s argument section in his brief was less than one page long and did not develop the point adequately to preserve it for appellate review. Furthermore, an appellate court has no jurisdiction to review a district court’s discretionary decision to depart from the guidelines, as long as it is clear that the court knew it had such discretion. U.S. v. Green, 114 F.3d 613 (7th Cir. 1997).
7th Circuit denies credit under § 5G1.3 for previously completed sentence. (860) Defendant was convicted of a federal drug conspiracy. He had previously served 11 months in a state prison for distributing the same marijuana that gave rise to the federal conviction. Defense counsel asked the judge to give defendant credit under § 5G1.3 for the 11 months served under the state conviction. The Seventh Circuit held that a court may not give sentencing credit under § 5G1.3 for a completed sentence. Section 5G1.3 applies only when a court is sentencing a defendant “subject to an undischarged term of imprisonment.” Defendant had completed his state incarceration at the time of sentencing for the federal offense. Therefore, his request for credit was in effect a request for a downward departure. The discretionary denial of such a request is not reviewable on appeal. U.S. v. Schaefer, 107 F.3d 1280 (7th Cir. 1997).
7th Circuit lacks jurisdiction to review reasons for sentence at top of range. (860) Defendant argued that the judge erred when he considered defendant’s mental health in determining that defendant should be sentenced at the high end of the guideline range. The Seventh Circuit held that it lacked jurisdiction to review the sentence because it was within the guideline range. A sentencing judge’s ability to consider a defendant’s need for rehabilitation or medical care is not limited by 28 U.S.C. § 994; that section is directed to the Sentencing Commission in its promulgation of the guidelines. A district judge is instructed by 18 U.S.C. § 3553(a)(2)(D) to provide the defendant with needed medical care, or other correctional treatment, in the most effective manner. U.S. v. Hardy, 101 F.3d 1210 (7th Cir. 1996).
7th Circuit refuses review where court stated it would not depart even if it had authority. (860) Defendant requested a downward departure because he would be deported after serving his prison term and therefore would not qualify for prison benefits such as early release. The district court refused, stating that it would not depart downward even if it had the discretion to do so. The Seventh Circuit held that it lacked jurisdiction over cases where the court unambiguously indicates that it would not depart from the sentence even if it had the authority to do so. U.S. v. Jackson, 93 F.3d 335 (7th Cir. 1996).
7th Circuit says guidelines do not completely bar remorse as basis for departure. (860) At sentencing, the judge stated that defendant “deserves downward departure on remorse, but I don’t think she deserves downward departure on the law even if I were inclined to give her one, and so it’s denied.” The Seventh Circuit held that the judge incorrectly believed that he lacked the discretion to depart downward on account of defendant’s remorse. The judge’s statement should be taken at face value—as an expression of the idea that the law prohibited him from granting a downward departure for remorsefulness. Although the guidelines may discourage the consideration of a defendant’s remorse in most decisions about downward departures, they do not contain an absolute ban on a district court’s indulging in such a consideration. U.S. v. Jaroszenko, 92 F.3d 486 (7th Cir. 1996).
7th Circuit holds gun and crack in car at midnight did not justify lesser harms departure. (860) A jury convicted defendant of being a felon in possession of a firearm after police found drugs and a gun in the car defendant was driving. Defendant contended that he possessed the gun for self‑defense, and therefore should have received a downward departure under § 5K2.11 (Lesser Harms). The Seventh Circuit held it lacked jurisdiction to review the matter, since the record showed that the court recognized its authority to depart but found that it was not warranted in this case. Moreover, even giving defendant the benefit of the doubt, the refusal to depart was proper. If defendant, a convicted felon, kept a firearm in his house on a particular day because of a direct, imminent threat of harm from an anticipated intruder, he might qualify under § 5K2.11. However, his possession of a firearm around midnight in a car also carrying crack cocaine did not come close to the sort of mitigating circumstance reviewed by the Eighth Circuit in U.S. v. One Star, 9 F.3d 60 (8th Cir. 1993). U.S. v. Murray, 89 F.3d 459 (7th Cir. 1996) .
7th Circuit says failure to explain refusal to depart does not show failure to exercise discretion. (860) Defendant sought to circumvent the rule against reviewing refusals to depart by claiming that the court’s failure to give reasons for its refusal to depart was a determination that it was without legal authority to depart on these grounds. The Seventh Circuit refused to assume that a court’s mere failure to articulate reasons for its refusal to depart showed that its decision rested upon a finding of law, as opposed to an exercise of discretion. There must be some indication in the record that the district court believed that it did not possess the authority to depart from the guidelines range. The record in this case did not contain such an indication. U.S. v. Cureton, 89 F.3d 469 (7th Cir. 1996).
7th Circuit is without jurisdiction to review sentence within guideline range. (860) Defendant argued that his 25‑year military record and 28‑year employment record were sufficiently extraordinary to warrant a downward departure. The Seventh Circuit held that it was without jurisdiction to review the sentence, since it was within the applicable guideline range. U.S. v. Shlater, 85 F.3d 1251 (7th Cir. 1996).
7th Circuit rules court was aware of authority to depart. (860) Defendant argued that the district court erroneously believed that the guidelines did not permit it to depart downward despite mitigating circumstances. The Seventh Circuit found that court knew it had the authority to depart and simply exercised its discretion not to do so. A defendant bears the burden of convincing a court otherwise. The court’s oral pronouncement at sentencing did not suggest a lack of understanding. The court found “no reason to depart from the sentence called for by application of the guidelines.” The court exercised discretion when it chose to impose an 80‑month sentence when the available range was 78‑97 months. The court merely expressed compassion for a man sentenced in conformity with an exacting sentencing scheme. U.S. v. Larkins, 83 F.3d 162 (7th Cir. 1996).
7th Circuit refuses to review sentence based on disparity claim. (860) Defendant pled guilty to drug conspiracy charges. He argued that his 192‑month sentence violated due process and equal protection and that it was irrationally disproportionate to the 121‑month sentences of co‑defendants who engineered the deal. The Seventh Circuit rejected the claim. Nothing in the § 3742(a) allows review of a sentence imposed in conformity with the guidelines on the ground that a co‑defendant was treated differently. Defendant’s sentence was higher because he was subject to a 20‑year mandatory minimum based on the amount of drugs involved and the fact that this was a second offense. The district court departed to a 192‑month sentence based on the government’s § 5K1.1 motion. Defendant was essentially challenging the court’s refusal to depart even further downward than it did. This decision is not reviewable. U.S. v. Rios‑Calderon, 80 F.3d 194 (7th Cir. 1996).
7th Circuit finds judge decided defendant’s rehabilitation was not extraordinary. (860) Defendant challenged the court’s failure to depart based on post‑offense rehabilitation. The Seventh Circuit refused to review the matter, finding the court was willing to assume that extraordinary post‑offense rehabilitation is a grounds for departure, but that defendant’s rehabilitative efforts were not extraordinary. The court made a discretionary decision to deny the requested departure and therefore the appellate court had no jurisdiction to review the decision. U.S. v. Lewis, 79 F.3d 688 (7th Cir. 1996).
7th Circuit upholds $10,000 fine where defendant refused to provide financial data. (860) Defendant argued that the district court erred in imposing a $10,000 fine because there was no evidence that he had the ability to pay. The Seventh Circuit affirmed the fine, since defendant failed to meet his burden of proof by refusing to provide any financial data to the probation department. The district court ordered the fine paid through the Inmate Financial Responsibility Program, with the remainder paid in $100 per month installments during the period of supervised release. Moreover, the fine imposed was below the minimum set forth in the fine table. An appellate court lacks jurisdiction to review the extent of a district court’s departure below the minimum fine amount authorized by the guidelines. U.S. v. Young, 66 F.3d 830 (7th Cir. 1995).
7th Circuit upholds $10,000 fine where defendant refused to provide financial data. (860) Defendant argued that the district court erred in imposing a $10,000 fine because there was no evidence that he had the ability to pay. The Seventh Circuit affirmed the fine, since defendant failed to meet his burden of proof by refusing to provide any financial data to the probation department. The district court ordered the fine paid through the Inmate Financial Responsibility Program, with the remainder paid in $100 per month installments during the period of supervised release. Moreover, the fine imposed was below the minimum set forth in the fine table. An appellate court lacks jurisdiction to review the extent of a district court’s departure below the minimum fine amount authorized by the guidelines. U.S. v. Young, 66 F.3d 830 (7th Cir. 1995).
7th Circuit lacks authority to review failure to depart. (860) Defendant argued that he should have received a downward departure given the disparity between his 115-month sentence and the 36-month sentence of a co-conspirator. The Seventh Circuit held that it lacked discretion to review the court’s exercise of discretion to deny a departure. There was no indication in the transcript that the district court believed it lacked authority to depart. U.S. v. Reynolds, 64 F.3d 292 (7th Cir. 1995).
7th Circuit refuses to review lack of criminal history departure. (860) Defendant argued that the court should have granted his request to depart downward from criminal history level of IV to III. The Seventh Circuit held that a decision by the court not to depart downward is not a basis for review. U.S. v. Allender, 62 F.3d 909 (7th Cir. 1995).
7th Circuit lacks jurisdiction to review extent of downward departure from guideline fine range. (860) Defendant challenged a $15,000 fine based on his limited financial resources and earning capacity. Section 5E1.2(c)(3) called for a minimum fine of $25,000. The Seventh Circuit held that it had no authority to review defendant’s claim that the court’s departure from the minimum fine was not enough. The district court found that while defendant could not pay the $25,000 minimum, he could pay a $15,000 fine from prison earnings or while on supervised release. Prison wages are available to pay fines. The extent of any departure from the minimum fine set by § 5E1.2(c)(3) is committed to the discretion of the district court. U.S. v. Gibbs, 61 F.3d 536 (7th Cir. 1995).
7th Circuit affirms where sentence was within properly calculated guideline range. (860) Defendant was convicted of kidnapping and aggravated sexual abuse. He argued that his 211-month sentence was “patently excessive,” given the circumstances. The Seventh Circuit affirmed, since the sentence was within his properly calculated guideline range. Defendant did not dispute the probation’s officer calculation of his offense level or criminal history. The judge had the discretion to sentence him in the middle of the guideline range, given the violent nature of the crime and the fact that defendant denied guilt and refused to accept responsibility for his crime. U.S. v. Boyles, 57 F.3d 535 (7th Cir. 1995).
7th Circuit finds court was aware of authority to depart from career offender guideline. (860) Defendant argued that the district court erroneously concluded that it had no power to depart downward from the career offender guidelines. The Seventh Circuit found that the court was aware of its ability to depart and refused to do so, even though it believed that the guideline sentence was too severe. The court discussed a career offender case in which the court departed, and noted that it, too, might have departed under the circumstances presented there. However, it found that the defendant here fit more closely the idea of a career offender. The court correctly noted that it could not depart simply because it believed that the guidelines, as a whole, were too harsh. U.S. v. Jones, 55 F.3d 289 (7th Cir. 1995).
7th Circuit refuses to review failure to grant diminished capacity departure. (860) Defendant challenged the district court’s refusal to depart downward under § 5K2.13 for a non-violent offense caused by a significantly reduced mental capacity. The Seventh Circuit would not review the refusal to depart. It was clear from the transcript that the district court was not inclined to depart on this basis, regardless of whether defendant’s offenses were characterized as violent or non-violent. Such a discretionary decision is not subject to review. U.S. v. Johnson-Dix, 54 F.3d 1295 (7th Cir. 1995).
7th Circuit refuses to review failure to depart based on sentence disparity. (860) Defendant argued that the district court erroneously concluded that it could not depart downward based on the disparity between his own 102-month sentence and two conspirators who received 16 and 12 month sentences. The Seventh Circuit held that it lacked jurisdiction to review the court’s refusal to depart where that refusal reflects an exercise of the judge’s discretion. Moreover, disparity in sentences, by itself, is not a basis for a departure. U.S. v. Austin, 54 F.3d 394 (7th Cir. 1995).
7th Circuit says court not required to depart despite victim’s request for leniency. (860) Defendant was convicted of retaliating against a federal witness. He argued that the district court should have departed downward based on the victim’s testimony that defendant should not go to jail, that defendant had a lesser role in the offense, and that the victim hoped the court would be lenient on defendant. The district court discounted the testimony, and the Seventh Circuit found no error. Section 1B1.4 states that a court may consider any information in determining whether to depart. Its language is permissive, not mandatory. Moreover, the court did consider the victim’s testimony. U.S. v. Cunningham, 54 F.3d 295 (7th Cir. 1995).
7th Circuit cannot review refusal to depart to give credit for time served on related offense. (860) Defendant sought credit for a 12-month federal sentence and a two-month state sentence because the underlying conduct was part of the instant conspiracy and was taken into account in defendant’s base offense level. Section 5G1.3 requires concurrent sentences for such offenses, but defendant had completed his sentences and therefore had no “undischarged term of imprisonment.” Note 2 to § 5G1.3 states that in such situations, the court should adjust the instant sentence to account for any sentence already served. The district court declined to depart downward and grant defendant the credit, because he had received a lower sentence than he should have for the earlier offense. The Seventh Circuit held that it lacked discretion to review the court’s refusal to depart under § 5G1.3. But it encouraged the court to revisit this issue on remand. The mistake in Kansas did not justify denying the departure, since any additional sentence in Kansas would have been added to his credit in this case. U.S. v. Blackwell, 49 F.3d 1232 (7th Cir. 1995).
7th Circuit lacks jurisdiction to review court’s refusal to depart downward. (860) Defendant argued that the district court erred in denying his motion for a downward departure based on his attorney’s poor advice, his own alleged mental impairment, and the delay in bringing the case to trial. The Seventh Circuit held that it lacked jurisdiction to review the district court’s decision. The district judge considered defendant’s motion, rejected it, and imposed a sentence within the applicable guideline range. U.S. v. Burrows, 48 F.3d 1011 (7th Cir. 1995).
7th Circuit holds that judge was aware of authority to depart based on agent’s coercion. (860) Defendant requested a downward departure because she initially intended to buy only two kilograms of cocaine, but was coerced by an undercover agent into buying 10 kilograms. The district court denied the motion, finding that defendant was not subject to serious coercion or duress when she agreed to buy the 10 kilos. The 7th Circuit held that the refusal to depart was not reviewable, since the judge was aware of her authority under § 5K2.12 to depart downward based on duress or coercion. Judge Ripple concurred separately because he was disturbed that the undercover agent had attempted to increase the amount of the drug sale to ensure that defendant would be prosecuted by the federal government, rather than by the state. U.S. v. Steels, 38 F.3d 350 (7th Cir. 1994).
7th Circuit finds court was aware of its authority to depart based on coercion and duress. (860) Defendant committed an armed bank robbery. He testified that he destroyed the cocaine of drug dealers who poisoned his sister. The dealers demanded the value of the destroyed cocaine, and defendant had no money to do so. He claimed that the district court should have departed downward under § 5K2.12 based on coercion and duress. The 7th Circuit held that it lacked jurisdiction to review the matter, since the district court was aware of its authority to depart under § 5K2.12. The district court found that even if the threats occurred, defendant’s robbery was an unreasonable response. The judge’s comments showed that the court determined that the evidence presented by defendant did not warrant a departure. U.S. v. Wright, 37 F.3d 358 (7th Cir. 1994).
7th Circuit refuses to review failure to depart for sentencing manipulation. (860) Defendant argued that the district court erred in refusing to depart downward based on the government’s sentencing manipulation. He contended that the government’s sole purpose in using two kilograms of cocaine in the reverse sting operation was to trigger a mandatory minimum sentence. He further argued that the drug was improperly sold at substantially below market value. The 7th Circuit held that it lacked jurisdiction to consider these claims. The district court was aware of its authority to depart on the grounds suggested by defendant, but declined to do so. Such a decision in not appealable. U.S. v. Winston, 34 F.3d 574 (7th Cir. 1994).
7th Circuit finds court may not have known it could depart downward for criminal history. (860) Dissatisfied with his trial attorney, defendant presented his own objections to his presentence report. The objections showed that defendant believed that the report overrepresented his criminal history, since certain of his crimes were committed as a juvenile and others were petty crimes related to his substance addictions. The district court apparently believed that defendant’s criminal record exaggerated the seriousness of his criminal conduct, but concluded the guidelines did not authorize a sentence reduction. The 7th Circuit remanded for the district court to consider whether a downward departure under § 4A1.3 was appropriate. An appellate court will ordinarily assume that a district court’s failure to use a guideline provision showed that the court had considered and rejected its application. Here, however, the district court made it known that it believed it did not have the authority to depart from what it considered an inappropriate sentence. U.S. v. Abbott, 30 F.3d 71 (7th Cir. 1994).
7th Circuit reaffirms it lacks jurisdiction to review refusal to depart downward. (860) Defendant challenged the district court’s refusal to depart downward, claiming her crime was a single aberrant act. The 7th Circuit noted that it lacked jurisdiction to review the district court’s discretionary refusal to grant a downward departure. The district court was aware of its authority to depart, but found that the case did not involve a single act of unplanned, spontaneous conduct by the defendant. U.S. v. Sablotny, 21 F.3d 747 (7th Cir. 1994).
7th Circuit says court was not obligated to give same downward departure on remand. (860) Defendant argued that the district court abused its discretion by granting him a smaller substantial assistance departure at resentencing than it did at his original sentencing. Even assuming that the departure was smaller, the 7th Circuit found no abuse of discretion. The district court was under no obligation to give the same downward departure upon resentencing. Because the effect of vacation is to nullify the previously imposed sentence, a district court sentencing on remand writes on a clean slate. The district court had the discretion to mitigate the downward departure based on its belief that defendant was able to assist authorities to the extent he did only because of his pervasive criminal activities. Caselaw does not require a two point reduction for satisfaction of each of the factors listed in § 5K1.1. U.S. v. Atkinson, 15 F.3d 715 (7th Cir. 1994).
7th Circuit says court’s finding that guidelines adequately covered factors is unreviewable. (860) Defendant argued that the district court erred in refusing to depart downward to account for his history of community service. The 7th Circuit held it had no jurisdiction to review the district court’s discretionary determination that the guidelines adequately accounted for the factors that defendant had raised in support of a departure. The district court was clearly aware that 18 U.S.C. § 3553(b) authorizes departures only to account for factors not taken into account by the guidelines. It determined that no such factors existed in this case. A district court’s finding regarding the existence of factors that would justify a departure is discretionary and not a question of law. Thus, the appellate court lacked jurisdiction to review the matter. U.S. v. Brown, 14 F.3d 337 (7th Cir. 1994).
7th Circuit refuses to review failure to depart based on diminished mental capacity. (860) Defendant argued that the court erred in denying his motion for a downward departure based on a reduced mental capacity. The 7th Circuit refused to review the decision, finding that the district court clearly knew it had the authority to depart under section 5K2.13, but simply declined to do so after it considered the circumstances of the case. U.S. v. Schechter, 13 F.3d 1117 (7th Cir. 1994).
7th Circuit finds that judge exercised discretion in refusing to depart downward. (860) The 7th Circuit held that it lacked jurisdiction over the district court’s failure to depart, concluding that the district court exercised discretion in refusing to depart. The judge did not believe that she lacked authority to depart, but that the facts of the case did not justify a downward departure. U.S. v. Thomas, 11 F.3d 732 (7th Cir. 1993).
7th Circuit does not require court to rely on every factor in making substantial assistance departure. (860) Defendant argued that the extent of her substantial assistance departure was inadequate because the court ignored the potential harm to her family caused by her cooperation. One of the factors listed in section 5K1.1 as relevant to the degree of a substantial assistance departure is risk of injury to the defendant or his family. The 7th Circuit found no error. It had no jurisdiction to review defendant’s claim that the downward departure should have been greater. A district court need not rely on every one of the factors provided in section 5K1.1. U.S. v. Thomas, 11 F.3d 1392 (7th Cir. 1993).
7th Circuit holds that district court was aware of its ability to depart. (860) The 7th Circuit held that the district court was aware of its ability to depart under section 5K2.12 based on coercion, and therefore its refusal to depart was not appealable. In refusing to depart, the sentencing court stated that it “declined” to depart, not that it was unable to depart. Counsel’s representation that the court improperly refused to depart because the jury’s rejection of the defense precluded him from doing so was wholly inaccurate. U.S. v. Gio, 7 F.3d 1279 (7th Cir. 1993).
7th Circuit refuses to review failure to depart based on lack of youthful guidance. (860) The 7th Circuit refused to review the district court’s failure to depart based on defendant’s lack of youthful guidance. Since at the time defendant was sentenced the guidelines were silent on the issue, the court presumably had discretion to consider this factor in deciding whether to depart downward. However, defendant presented no evidence to support his contention that the decision not to depart was based on anything but the merits of his case. Defendant specifically informed the court of its discretion to depart downward, cited relevant authority and requested a departure on these grounds. Although the court considered itself “limited by the guidelines,” it clearly understood that a decision to depart downward was within its discretion. U.S. v. Gaines, 7 F.3d 101 (7th Cir. 1993).
7th Circuit says use of polygraph results at sentencing was not plain error. (860) Defendant argued for the first time on appeal that the district court improperly admitted at sentencing the results of a polygraph examination of a prosecution witness without first reviewing the questions submitted to the witness. The 7th Circuit affirmed. Because defense counsel failed to make this objection below, it was deemed to be waived on appeal absent plain error. There was no plain error. While conceding that the witness’s request for a polygraph test and his favorable results were one “factor” among many that supported his credibility, the court recognized that polygraph tests are not an entirely reliable indication of veracity. The judge also stated that he would not infer from the polygraph evidence that defendants were deceitful because they had refused to take a similar test. U.S. v. Pitz, 2 F.3d 723 (7th Cir. 1993).
7th Circuit refuses to review failure to depart based on mental condition. (860) The 7th Circuit refused to review the district court’s failure to depart based on defendant’s mental condition, finding the court was aware of its ability to depart. The court stated that it “might consider departing,” but “was not sure that would be appropriate,” so instead sentenced defendant to the low end of his guideline range. U.S. v. Johnson, 999 F.2d 1192 (7th Cir. 1993).
7th Circuit upholds court’s refusal to grant full extent of departure recommended by government. (860) Defendant argued that the district court should have granted a 10-level downward departure (as recommended by the government) rather than an eight-level departure under section 5K1.1. He further contended that the error was not one of discretion but the result of an incorrect application of the law. He believed the court incorrectly interpreted U.S. v. Thomas, 930 F.2d 526 (7th Cir.), cert. denied, 112 S.Ct. 171 (1991). The 7th Circuit upheld the departure. Thomas lists various factors for a court to consider in granting a substantial assistance departure, but expressly permits a court to assign a greater or lesser weight to these factors. Although the government’s recommendation is entitled to great deference, the judge disagreed with its assessment of defendant’s truthfulness and the risk of danger presented by his cooperation. There was nothing in the judge’s findings to cause the appellate court to question the judge’s application of the law. U.S. v. Johnson, 997 F.2d 248 (7th Cir. 1993).
7th Circuit refuses to review extent of substantial assistance departure. (860) Although the government requested a section 5K1.1 departure to a sentence of 30 months, the district court imposed a 51-month sentence. The court did not believe that defendant should benefit from the information he gained from his deep involvement in drug dealing. The court also criticized the inconsistency in government’s departure policy, because two co-defendants who rendered substantial assistance were not the subject of a government motion for a downward departure. The 7th Circuit affirmed that it had no jurisdiction to review the extent of the downward departure. The sentence was not imposed in violation of law. The court was clearly aware that it could depart further, but refused to do so. U.S. v. Correa, 995 F.2d 686 (7th Cir. 1993).
7th Circuit would permit appeal if court relied on false evidence in declining to depart downward further. (860) Defendant argued that the district court should have departed further downward than it did. He said the court should not have relied on his first confession to determine drug quantity, because the confession was unreliable. The 7th Circuit concluded that the failure to depart further could be appealed if it was based on a factual error that would rise to the level of a due process violation. However, because the defendant could not cast “grave doubt as to the veracity of the information,” and because he could not show that the district court had relied on the information in deciding not to depart further, relief was denied. The district court’s mention of the amount of drugs did not demonstrate that the court relied on that fact. Nor was the difference enough to suspect that it influenced the court’s decision; it was not even enough to alter defendant’s guideline range. U.S. v. Harris, 994 F.2d 412 (7th Cir. 1993).
7th Circuit refuses to review failure to depart downward. (860) Defendant appealed the district court’s refusal to depart downward based upon his reduced mental capacity. The 7th Circuit held that because the district court acknowledged that it possessed authority to depart downward, the appellate court lacked jurisdiction to consider on appeal its refusal to do so. U.S. v. Evans, 994 F.2d 317 (7th Cir. 1993).
7th Circuit says court’s refusal to depart further from statutory minimum was not reviewable.. (860) Defendant was subject to a mandatory minimum, but the government filed a substantial assistance motion and recommended a downward departure to a 10-year sentence. The district court imposed a 12-year sentence, departing below the mandatory minimum sentence, but declined to depart below the guidelines range that would apply in the absence of the mandatory minimum. The 7th Circuit held that it lacked jurisdiction to consider the extent of the downward departure. U.S. v. Shaffer, 993 F.2d 625 (7th Cir. 1993).
7th Circuit authorizes “aberrant behavior” departure, but declines review here. (860) Defendant argued that a downward departure was justified because her crime constituted a single act of aberrant behavior. The 7th Circuit expressly recognized this as a permissible basis for a downward departure. However, the court held that it lacked jurisdiction over defendant’s appeal, because it found the district court’s refusal to depart was not based on an erroneous legal conclusion about the court’s authority to depart. The district court’s conclusion that the 7th Circuit would reverse any downward departure did not alter this conclusion. U.S. v. Gulley, 992 F.2d 108 (7th Cir. 1993).
7th Circuit finds no appealable issue where court denies substantial assistance departure because of criminal history. (860) At defendant’s sentencing, the government moved for a downward departure based on defendant’s substantial assistance. The district court refused to depart, stating that the failure of defendant’s criminal history score to reflect crimes for which he had been convicted but not yet sentenced would normally require an upward departure. The 7th Circuit found it lacked jurisdiction over the appeal because of the trial court’s decision to sentence within the guidelines range. It noted, however, that the guidelines do permit a judge to take account of convictions on which sentence has not yet been imposed. U.S. v. Eibler, 991 F.2d 1350 (7th Cir. 1993).
7th Circuit says government did not waive right to appeal despite failure to object at sentencing. (860) At sentencing, the district court rejected defendant’s plea agreement which called for a 12-month sentence, and departed downward to a sentence of five years’ probation. The 7th Circuit held that the government did not waive its right to appeal even though if failed to object. The prosecutor could not have objected before the hearing because the judge neglected to give proper notice of his intent to depart. Although the prosecutor did not object at sentencing either, he claimed to have informed defense counsel after the hearing that there would be an appeal. Although the prosecutor could have been more aggressive in stating his disagreement, it was obvious that the court and defendant knew the government was not pleased by the sentence which contravened the plea agreement. Defendant presented no authority for the proposition that a party must object to a final judgment at the time it is imposed in order to reserve the right to appeal. U.S. v. Muzika, 986 F.2d 1050 (7th Cir. 1993).
7th Circuit refuses review where no evidence that court was unaware of its authority to depart. (860) The 7th Circuit refused to review the district court’s refusal to depart downward based on defendant’s alleged extraordinary physical impairment. There was no evidence to suggest that the district court was unaware of its authority to depart. Thus, the appellate court presumed that the failure to depart was a discretionary decision. This was supported by the extensive evidence describing defendant’s physical condition which the district court considered. U.S. v. Helton, 975 F.2d 430 (7th Cir. 1992).
7th Circuit reaffirms that district court exercised discretion in refusing to depart downward. (860) The 7th Circuit found that it had no jurisdiction to review the district court’s refusal to depart downward, since it was clear from the record that the court exercised its authority in refusing to depart. The court stated all of the things urged by defendant were taken into account by the guidelines, and that it did not see any reason to depart from the guidelines. U.S. v. Shetterly, 971 F.2d 67 (7th Cir. 1992).
7th Circuit says appeal of court’s refusal to depart downward is frivolous. (860) The 7th Circuit found that defendant’s appeal of the district court’s refusal to depart downward “border[ed] on being frivolous.” It had no jurisdiction under 18 U.S.C. section 3742(a) over a district court’s refusal to depart downward unless the sentence was imposed in violation of the law. Defendant did not suggest how the refusal to depart in this case violated any law. U.S. v. Trussel, 961 F.2d 685 (7th Cir. 1992).
7th Circuit affirms reliance upon defendant’s justifications for offense to deny acceptance of responsibility reduction. (860) Defendant, a prison inmate, pled guilty to carrying a prohibited item, a sharpened pen, in prison. Defendant argued that his reason for carrying the weapon (he feared for his life in a prison filled with dangerous inmates overseen by guards indifferent to his safety) was a mitigating circumstance which should have persuaded the court to lower his sentence within the guideline range or depart downward. The 7th Circuit found that 18 U.S.C. section 3742(a), which governs appellate review of sentencing decisions, precluded it from reviewing a sentence within the properly calculated guideline range. The district court could properly consider defendant’s justifications for the offense as grounds for denying him a reduction for acceptance of responsibility. U.S. v. Beal, 960 F.2d 629 (7th Cir. 1992).
7th Circuit refuses to review decision not to depart. (860) The 7th Circuit refused to review the district court’s decision not to depart downward from the guideline range in spite of mitigating factors presented by defendant. The decision not to depart is entrusted to the sentencing court’s unreviewable discretion where the court has reviewed the mitigating factors prior to making that decision. U.S. v. Rossy, 953 F.2d 321 (7th Cir. 1992).
7th Circuit refuses to review refusal to depart based upon family ties and circumstances. (860) Defendant argued that the district court declined to grant a downward departure based upon its erroneous perception that family ties and circumstances were an inappropriate reason for a departure. The 7th Circuit rejected this contention, finding that the district court considered all the factors raised by defendant and simply refused to grant a downward departure. Nowhere did the judge state he was unable to consider factors such as family ties and circumstances. The judge stated that he was convinced that a downward departure was not appropriate in this instance. A district court’s refusal to depart downward is not reviewable on appeal. U.S. v. Welch, 945 F.2d 1378 (7th Cir. 1991).
7th Circuit affirms district court’s refusal to depart downward despite government motion. (860) The 7th Circuit found no merit to defendant’s claim that the district court was required under 18 U.S.C. § 3553(e) to depart downward after the government made a motion for a downward departure based upon defendant’s substantial assistance. The language in § 3553(e) does not mandate a downward departure, but mandates that the district court comply with the sentencing guidelines. Section 3553(e) and guideline § 5K1.1 are generally treated as parallels for purposes of analysis. U.S. v. Hayes, 939 F.2d 509 (7th Cir. 1991).
7th Circuit refuses to review refusal to depart downward where judge exercised discretion. (860) The 7th Circuit refused to review the district court’s failure to make a downward departure, where the record reflected that the district court considered the mitigating factors suggested by defendant, and expressly determined that no departure was warranted. Such an exercise of discretion is not reviewable by an appellate court. U.S. v. Macias, 930 F.2d 567 (7th Cir. 1991).
7th Circuit refuses to review 97-month sentence imposed upon 69-year-old woman. (860) Defendant challenged the length of her 97 month sentence on drug charges, arguing that, because she was nearly 69 years old when sentenced, she was likely to die in prison. The 7th Circuit found that since the sentence was within the guideline range, it was without jurisdiction to review the sentence. U.S. v. Solis, 923 F.2d 548 (7th Cir. 1991).
7th Circuit finds disparate sentences are not an abuse of discretion. (860) Defendant complained that his codefendant received a proportionately lesser prison term than he did. The court found that disparity alone does not constitute an abuse of discretion. Defendant actually received a lower sentence than the codefendant, and the 7th Circuit found that his “disproportionality argument appears to be, at bottom, an expression of his disappointment at the extent of the departure he did receive.” Since the 7th Circuit had no jurisdiction to review the extent of a downward departure, the district court’s sentence was affirmed. U.S. v. Heilprin, 910 F.2d 471 (7th Cir. 1990).
7th Circuit reaffirms that it has no jurisdiction to review a refusal to depart downward. (860) The 7th Circuit, following previous circuit precedent, held that it lacked appellate jurisdiction to review a district court’s refusal to depart downward unless the sentence was imposed in violation of law. Since defendant did not argue that his sentence was unlawful, the circuit court refused to hear his claim. U.S. v. Franco, 909 F.2d 1042 (7th Cir. 1990).
7th Circuit reaffirms that it has no jurisdiction to review a refusal to depart downward. (860) The 7th Circuit, following previous circuit precedent, held that it lacked appellate jurisdiction to review a district court’s refusal to depart downward unless the sentence was imposed in violation of law. Since defendant did not argue that his sentence was unlawful, the circuit court refused to hear his claim. U.S. v. Franco, 909 F.2d 1042 (7th Cir. 1990).
7th Circuit holds that it has no jurisdiction to review downward departure. (860) Defendant contended that the sentencing court’s failure to grant a greater departure downward was the result of an incorrect application of the guidelines. The 7th Circuit held that it had no jurisdiction to review a claim that a departure from a lawful sentence was an incorrect application of the sentencing guidelines. Defendant also contended that the district court’s failure to depart further downward was unreasonable. The 7th Circuit also held it had no jurisdiction to review this claim, finding that § 3742(a) of the guidelines only authorizes a defendant to appeal an upward departure from a properly calculated sentencing range. U.S. v. Dean, 908 F.2d 215 (7th Cir. 1990).
7th Circuit rules that extent of downward departure is not reviewable. (860) The district court departed downward less than recommended by either the government or the defense and defendant appealed. The 7th Circuit dismissed the appeal, holding that 18 U.S.C. § 3742(a) does not authorize appellate review of a downward departure of a sentence lawfully imposed under a correct application of the sentencing guidelines. U.S. v. Gant, 902 F.2d 570 (7th Cir. 1990).
7th Circuit holds that it does not have jurisdiction to entertain appeals from discretionary refusals to depart downward. (860) Defendant essentially argued that the sentencing judge erred by refusing to grant a downward departure from base offense level 28 to base offense level 27. The 7th Circuit stated that it could not consider this argument because it did not have jurisdiction to entertain appeals from discretionary refusals to depart downwards. Schetz v. U.S., 901 F.2d 85 (7th Cir. 1990).
7th Circuit holds that appellate courts lack jurisdiction to review a denial of a request for a departure. (860) After reviewing the language and legislative history of 18 U.S.C. § 3742(a), as well as prior decisions from other circuits, the 7th Circuit held that it lacked jurisdiction to review a district court order refusing a defendant’s request for a departure from the applicable guideline range. Good discussion of the statute and legislative history. U.S. v. Franz, 886 F.2d 973 (7th Cir. 1989).
8th Circuit upholds refusal to vary or depart based on physical impairments. (860) Defendant was convicted of misapplication of funds from an Indian tribal organization, and related charges. The court sentenced her to 33 months, the bottom of the advisory guideline range. She argued on appeal that the court abused its discretion in failing to depart downward under § 5H1.4 for extraordinary physical impairments, and failing to grant her a variance based upon her substantial health issues. The Eighth Circuit found no error. When a district court is aware of its discretion to depart downward, its decision not to depart is unreviewable. Here, the court clearly recognized its authority to depart and declined to depart because it believed that defendant’s health care problems could be easily managed by the Bureau of Prisons. Moreover, defendant’s sentence fell within her advisory guideline range, which meant it was entitled to a presumption of reasonableness. Defendant did not overcome that presumption. U.S. v. Wanna, 744 F.3d 584 (8th Cir. 2014 ).
8th Circuit upholds court’s refusal to depart or vary from guidelines. (860) Defendant was convicted of two counts of aggravated sexual abuse of a child and two counts of abusive sexual contact. He was sentenced to 192 months, which fell within his guideline range of 188-235 months. The Eighth Circuit held that the district court did not abuse its discretion by refusing to depart or vary downward. Defendant had requested a downward departure or variance due to his age, 58, and health concerns. The district court demonstrated awareness of its discretion to depart downward by recognizing that the guidelines are advisory, not mandatory. The decision to not depart was unreviewable. Further, the district court considered all relevant factors in arriving at its sentence, including defendant’s age and medical condition. The court recommended that he serve his sentence in a federal medical center. The district court weighed the appropriate factors and did not commit a clear error of judgment. U.S. v. Crow Eagle, 705 F.3d 325 (8th Cir. 2013).
8th Circuit upholds refusal to depart down for mental and emotional issues. (860) Defendant argued that the district court erred in refusing to depart down pursuant to § 5H1.3 because of defendant’s mental health and emotional conditions. He argued that it was unclear whether the district court was aware that § 5H1.3 was amended shortly before the hearing. However, the Eighth Circuit presumed the district court knew the law and considered the provision in effect at the time of sentencing, absent any indication to the contrary. The district court heard defendant’s arguments, and expressly recognized defendant’s mental and emotional health issues, before implicitly denying the motion by finding that the guideline range was appropriate for an offender with defendant’s background and offense conduct. A district court’s refusal to grant a downward departure under the Sentencing Guidelines is unreviewable unless the court had an unconstitutional motive in denying the request or failed to recognize that it had the authority to depart downward. U.S. v. Dixon, 650 F.3d 1080 (8th Cir. 2011).
8th Circuit upholds refusal to grant downward departure for family circumstances. (860) Defendant sought a sentence that would involve zero incarceration through a downward departure under § 5H1.6, or alternatively, a variance under § 3553(a). He argued that his son, who suffered from muscular dystrophy, required around-the-clock care that defendant’s wife could not provide by herself. The Eighth Circuit refused to review the district court’s refusal to grant a downward departure based on family circumstances. The district court neither had an unconstitutional motive nor erroneously believed it was without authority to grant a departure under § 5H1.6. Therefore, its refusal to depart was not reviewable. The court did not commit procedural error by failing to consider defendant’s family circumstances as a relevant factor under § 3553(a). The record reflected that the court clearly considered the son’s medical condition and defendant’s role as a caretaker. It credited the testimony of the son’s doctor that the son could be cared for by one-person full-time with occasional assistance from others. U.S. v. Underwood, 639 F.3d 1111 (8th Cir. 2011).
8th Circuit affirms sentence within guideline range. (860) Defendant argued that the district court’s failure to grant a downward departure or variance resulted in a substantively unreasonable sentence that was greater than necessary under § 3553(a)(2). Since the district court was aware of its authority to depart downward, the Eighth Circuit ruled that it had no authority to review its failure to do so. It did have authority to review the court’s refusal to grant a downward variance for abuse of discretion. Defendant’s 180-month sentence was within defendant’s advisory guideline range of 168-210 months in prison and was therefore presumptively reasonable. U.S. v. Brown, 627 F.3d 1068 (8th Cir. 2010).
8th Circuit refuses to review denial of departure or variance. (860) Defendant objected to the district court’s denial of his motion for a downward departure or variance and claimed that his sentence was unreasonably long. His request for a departure or variance was based on his mental and emotional disorders, the physical and sexual abuse he suffered as a child, and his difficulty in reading and writing. A sentencing court’s discretionary decision not to depart downward is not generally reviewable on appeal, however, and defendant did not allege that the district court had an unconstitutional motive or mistakenly believed it lacked authority to grant the departure. Therefore, the Eighth Circuit declined to review the court’s denial of the departure. The sentence was substantively reasonable. The district court correctly calculated defendant’s advisory guideline range and imposed a 360-month sentence, which fell at the very bottom of the range. U.S. v. Brown, 539 F.3d 835 (5th Cir. 2008).
8th Circuit will not review refusal to vary or depart based on extraordinary medical condition. (860) Defendant was convicted of receiving child pornography, and received a 97-month sentence, which was at the low end of his advisory guideline range. He suffered from a rare congenital condition that led to the complete loss of vision in his right eye, was legally blind in the left eye, and would be blind in both eyes within three years. Defendant requested and was denied a departure under §§5H1.4 and 5K2.0 for an extraordinary physical impairment and extreme susceptibility to abuse in prison. The court also rejected defendant’s request for a variance based on the discretionary factors of 18 U.S.C. §3553. The Eighth Circuit upheld the sentence as substantively reasonable. The district court thoroughly considered defendant’s arguments, and the impact of an advisory guideline sentence on defendant’s medical conditions, before determining that a sentence at the bottom of the advisory range was appropriate. The court’s refusal to depart based on defendant’s claim of an extraordinary physical impairment was not reviewable on appeal. U.S. v. Toothman, 543 F.3d 967 (8th Cir. 2008).
8th Circuit reaffirms that refusal to depart is not reviewable. (860) Defendant argued that the district court erred in declining to depart downward based upon his exceptional family circumstances, acceptance of responsibility, and his rehabilitation since the date of the offense. The Eighth Circuit ruled that the matter was not reviewable. Defendant did not allege that the district court did not recognize his authority to depart, and it appeared from the record that the court recognized its authority but declined to exercise it. U.S. v. Hessman, 493 F.3d 977 (8th Cir. 2007).
8th Circuit upholds denial of request by fraud defendant for extraordinary variance. (860) Defendant was convicted of wire fraud stemming from a scheme to steal and sell airplane parts and electronic equipment from his employer. His guideline range was 41-51 months, but his attorney requested an extraordinary variance – probation instead of prison time, citing defendant’s young children and his considerable religious and civic work. The district court refused to do so, discussed the § 3355(a) factors, and imposed a 41-month sentence. The Eighth Circuit held that the sentence was reasonable. The district court dispatched its duties under U.S. v. Haack, 403 F.3d 997 (8th Cir. 2005). The court had good reasons for rejecting defendant’s request for such an extraordinary variance. The court took into account defendant’s history and characteristics, the seriousness of the crime, the need for deterrence, and the need to treat like-crimes similarly. U.S. v. Boothe, 491 F.3d 916 (8th Cir. 2007).
8th Circuit finds it lacked jurisdiction to hear appeal of Rule 35(b) sentence. (860) Defendant originally received a 41-month sentence, but in response to the government’s Rule 35(b) motion, the court later reduced his sentence to 36 months. Defendant had requested a further reduction based on the extent and risks of his cooperation. He appealed the 36-month sentence as unreasonable. The Eighth Circuit held that it lacked jurisdiction to hear the appeal of the Rule 35(b) sentence. Jurisdiction over an appeal of a Rule 35(b) sentence is governed by 18 U.S.C. § 3742(a). Defendant did not satisfy any of the criteria of § 3742(a)(1)-(4). Absent an unconstitutional motive, the extent to which a district court exercises its discretionary authority to depart downward is not subject to review. U.S. v. Haskins, 479 F.3d 955 (8th Cir. 2007).
8th Circuit finds denial of departure motion is unreviewable. (860) Defendant argued that the district court should have granted him a § 5K2.0 downward departure based on his military service and associated post-traumatic stress disorder. However, the sentencing transcript showed that the district court recognized its authority to depart while considering defendant’s motion for the departure. Therefore, the Eighth Circuit ruled that the denial of the motion was unreviewable. U.S. v. Cubillos, 474 F.3d 1114 (8th Cir. 2007).
8th Circuit holds that post-Booker, discretionary refusal to depart is not reviewable. (860) Defendant challenged the district court’s decision not to grant a downward departure from the advisory guideline range under § 5K2.0 (outside the heartland) and § 5K2.11 (lesser harms). The Eighth Circuit held that, post-Booker, it would continue to rule that a sentencing court’s discretionary refusal to grant a traditional departure is unreviewable on appeal as long the court recognized its authority to depart. Here, the district court recognized its authority to depart under §§ 5K2.0 and 5K2.11. As to the overall reasonableness of the sentence, a sentence within the guidelines range is presumptively reasonable. U.S. v. Kiertzner, 460 F.3d 988 (8th Cir. 2006).
8th Circuit upholds guideline sentence for assault as reasonable. (860) Defendant received a 40-month guideline sentence for his assault convictions. He argued that the court erred both by not departing from the guidelines and by giving an unreasonable sentence. The Eighth Circuit found no error in the refusal to depart, and found the guideline sentence reasonable. The district court did not abuse its discretion by inappropriately considering rehabilitation as a sentencing factor. The panel rejected defendant’s claim that the district court failed to adequately consider defendant’s family responsibilities. Although some cases have upheld downward departures based in part on family responsibilities, there are no cases in which courts have remanded for failure to adequately consider family responsibilities. Moreover, defendant did not claim his family required the substantial level of care and monitoring that situations involving downward departures have demanded. Defendant’s mother had been raising the children with defendant and had been caring for them since defendant’s arrest. U.S. v. Tobacco, 428 F.3d 1148 (8th Cir. 2005).
8th Circuit remands for consideration of departure based on time served. (860) Note 7 to § 5G1.3 says that in “the case of a discharged term of imprisonment, a downward departure is not prohibited if subsection (b) would have applied to that term of imprisonment had the term been undischarged.” Subsection (b) mandates that terms of imprisonment for essentially the same conduct shall run concurrently. Thus, the application note permits a departure for time previously served where the current and prior offenses involve the same conduct. Defendant argued that the district court did not recognize its authority to depart pursuant to this application note, and the Eighth Circuit agreed. The district court’s statements indicated that it believed that the determination of whether to credit defendant for time already served rested with the Bureau of Prisons. The panel remanded for consideration of whether a departure was proper. U.S. v. White, 354 F.3d 841 (8th Cir. 2004).
8th Circuit affirms discretionary denial of downward departure motion. (860) Defendant appealed the district court’s denial of his motion for a downward departure. Downward departures are left to the discretion of the district court and, as long as the district court recognizes its authority to depart, are virtually unreviewable on appeal. Here, the district court specifically acknowledged its authority to depart, and denied the motion based on defendant’s failure to substantiate his claim of diminished capacity. There was also no evidence to suggest that the court had an unconstitutional motive in denying that motion. The Eighth Circuit thus affirmed the court’s discretionary denial of the § 5K2.13 motion. U.S. v. Gonzalez-Ramirez, 350 F.3d 731 (8th Cir. 2003).
8th Circuit holds that court understood discretion to make criminal history departure. (860) In rejecting defendant’s request for a criminal history departure, the district court stated that “If I thought it wasn’t an abuse of discretion, I’d go ahead and grant [defendant’s] departure motion, but I have to follow the law and I think that you have to look at the entire criminal history … I can’t in good faith say that the criminal history is overstated for purposes of a downward departure.” The Eighth Circuit ruled that this statement indicated the court understood its authority to departure under § 4A1.3, but that a departure would be an abuse of discretion given defendant’s criminal history. Therefore, the refusal to depart was unreviewable. U.S. v. Williams, 340 F.3d 563 (8th Cir. 2003).
8th Circuit rules discretionary denial of motion for downward departure was not reviewable. (860) The discretionary denial of a motion for downward departure based on overstated criminal history is not reviewable unless the district court determined that it lacked authority to consider the motion. The Eighth Circuit held that the court’s denial of defendant’s request for a departure was unreviewable. The court determined that defendant was a career offender, knew of the circumstances surrounding defendant’s allegedly overstated prior conviction, knew of its ability to depart, and elected not to exercise its discretion to do so. U.S. v. Kelly, 329 F.3d 624 (8th Cir. 2003).
8th Circuit will not review extent of departure where no allegation of unconstitutional motive. (860) The district court granted a downward departure for substantial assistance based on the government’s § 5K1.1 motion, but refused to depart further to the 120-month minimum urged by defendant. Defendant argued that the court improperly relied on evidence of his involvement in a crime for which he was not charged, namely the murder of a four-year old by defendant’s fellow gang members. However, defendant did not allege that the court’s refusal to depart further was the result of an unconstitutional motive. Therefore, the Eighth Circuit ruled that the extent of the departure was unreviewable. U.S. v. Williams, 324 F.3d 1049 (8th Cir. 2003).
8th Circuit concludes that court was aware of discretion to depart for “equitable considerations.” (860) Defendant urged the district court to depart downward under § 5K2.0 based on equitable considerations, maintaining that he should be credited for three years incarceration previously served for an unrelated prior conviction that had been subsequently vacated. The district court acknowledged defendant’s equitable argument, but refused to depart. The Eighth Circuit dismissed the appeal for want of jurisdiction, finding that the district court was aware of its discretion to depart. For example, the court acknowledged: (1) the attractiveness of defendant’s equitable argument; (2) the serial nature of defendant’s firearm convictions; and (3) public policy concerns relating to serial criminals being allowed to, in essence, “bank” time for future transgressions. Also noteworthy was the absence of any statement from the district court that indicated its inability to depart, despite defendant’s solicitation for just such a declaration. U.S. v. Rhone, 311 F.3d 893 (8th Cir. 2002).
8th Circuit says immunity agreement permitted use of information to determine extent of § 5K1.1 departure. (860) At sentencing, the government moved for a substantial assistance departure, arguing that defendant had earned “the lowest possible sentence that the court could feel comfortable with.” The court granted the government’s motion. However, the sentencing judge had presided over defendant’s co-defendants’ trial, during which, as part of his immunity agreement, defendant testified about his own extensive 15-year drug dealing history. The judge commented that had she not known the extent of defendant’s drug dealing history, she likely would have given him a “different sentence.” Defendant argued that the court’s failure to grant him a greater downward departure because of his immunized testimony violated his 5th Amendment right against self-incrimination. The Eighth Circuit disagreed, since the immunity agreement permitted the use of the information he provided in this manner. The agreement clearly limited its terms to the scope of U.S.S.G. § 1B1.8. Under § 1B1.8, the information defendant provided could not be used to determine his applicable guideline range, but could be used to determine whether, and to what extent, he should received a downward departure for providing substantial assistance. The court did just that. U.S. v. McFarlane, 309 F.3d 510 (8th Cir. 2002).
8th Circuit interprets statement as recognition of authority to depart under proper circumstances. (860) In rejecting defendant’s motion to depart downward from his sentence for possessing child pornography, the court said “in cases such as this, where, obviously, there was no attempt to distribute … this material, it does seem to me to be a harsh sentence. However, under the Sentencing Guidelines my power in a case like this to impose a sentence that I think would be more appropriate is nonexistent. And [defendant] has not alluded to the few reasons that have been recognized by the Eighth Circuit to depart downward in this case. And while I would be inclined to do so, … there’s just no legal basis.” The Eighth Circuit ruled that the court was aware of its authority to depart, interpreting this explanation as an acknowledgement that a downward departure could not be justified under the Sentencing Guidelines based on defendant’s lack of distribution. Acting within its discretion, the court considered the mitigating circumstances proposed and found that defendant’s case was not so unusual as to warrant a departure under the guidelines. An appellate court cannot review such a ruling. U.S. v. VanHouten, 307 F.3d 693 (8th Cir. 2002).
8th Circuit lacks discretion to review extent of downward departure regardless of reasons. (860) Defendant was convicted of being a felon in possession of a firearm. Because defendant had possessed the firearms for hunting and target practice, the district court departed downward from the guideline range of 57-71 months and sentenced defendant to 37 months. The Eighth Circuit ruled that it lacked authority to review the extent of the district court’s departure regardless of the court’s reasons for declining to depart further. Defendant did not assert that his sentence violated federal constitutional or statutory law, or was based on an unconstitutional motive, or bad faith, and the sentencing transcript made clear that the court understood its authority to depart further, but chose not to do so. The court declined to depart all the way to a sentence of probation because of defendant’s possession of a semi-automatic weapon. U.S. v. DeBuse, 289 F.3d 1072 (8th Cir. 2002).
8th Circuit says criminal history error harmless where court found sentence harsh even after downward departure. (860) The district court erroneously found that defendant’s criminal history category was V rather than VI, but the Eighth Circuit found that the error was harmless. The court used the correct initial sentencing range of 360 months to life, concluded that criminal history category V overstated defendant’s criminal history, and determined the seriousness of his criminal history most closely resembled that of defendants in criminal history category III. The court then departed under § 4A1.3 to category III. Given the district court’s comments that defendant’s sentence remained harsh, the panel did not think the district court would depart to a criminal history category higher than III on remand even though the initial criminal history category should have been VI rather than V. Moreover, the government did not cross-appeal or request a remand. U.S. v. Peltier, 276 F.3d 1003 (8th Cir. 2002).
8th Circuit says court was aware of authority to depart. (860) Defendant argued that the district court erred in refusing to depart based on the overrepresentation of the seriousness of his criminal history. Although driving without a license “is a relatively minor infraction within the broader context of the criminal law,” the Eighth Circuit ruled that it lacked jurisdiction to review the refusal to depart downward. It was clear that the district court considered defendant’s objections and found that Category V was an adequate representation of the severity of his criminal history. There was nothing to indicate the district court believed it lacked the authority to depart. U.S. v. Lopez-Arce, 267 F.3d 775 (8th Cir. 2001).
8th Circuit says failure to seek departure based on willingness to be deported and alien status not ineffective. (860) Defendant argued that his counsel was ineffective in not moving for a downward departure based on his willingness to waive resistance to deportation and the effect on his sentence of being a deportable alien. The Eighth Circuit held that defendant did not show that his counsel was ineffective. Although a court may depart under § 5K2.0 based on a defendant’s willingness to waive resistance to deportation, the decision to depart is within the district court’s discretion. This court has not addressed whether being a deportable alien can warrant a departure in a non-immigration offense case, but many other courts have held that it is not a valid basis for departure. See, e.g. U.S. v. Bautista, 258 F.3d 602 (7th Cir. 2001); U.S. v. Charry Cubillos, 91 F.3d 1342 (9th Cir. 1996). “Failure to move for a downward departure on these bases cannot be said to be outside the broad range of reasonable assistance in this case where counsel chose to pursue a successful alternate strategy at sentencing and § 2255 counsel has not even identified what factors related to [defendant’s] status might support such a departure.” Defendant’s counsel was successful in obtaining a significant reduction in his sentence by concentrating on disputed drug quantity issues. “We cannot say that it was not sound strategy to avoid the risk of diverting the court’s focus from drug quantity.” U.S. v. Sera, 267 F.3d 872 (8th Cir. 2001).
8th Circuit holds that decision not to depart from money laundering guideline was unreviewable. (860) Defendant argued that his conduct fell outside the heartland of money laundering offenses because it was a simple theft accompanied by a “receipt-and-deposit” diversion to conceal the theft, rather than the type of large scale drug trafficking and professional money laundering that Congress had in mind when it enacted the money laundering statutes. Although the court denied the motion, it expressed sympathy for defendant’s position as to the intent of Congress. The Eighth Circuit held that the court was aware of its authority to depart, and therefore, the decision not to depart was not reviewable. In support of his downward departure motion, defendant submitted a memorandum that correctly cited Eighth Circuit cases holding that courts may depart downward from the money laundering guideline in atypical cases. See U.S. v. Woods, 159 F.3d 1132 (8th Cir. 1998); U.S. v. Ross, 210 F.3d 916 (8th Cir. 2000). In this context, when the court observed that it agreed with defendant’s position as to the intent of Congress but was “required” by Eighth Circuit precedent to deny a departure, “it obviously meant that a departure based solely on the disparity between the money laundering and embezzlement guidelines would be reversed as an abuse of discretion, as in Ross.” The panel refused to interpret the court’s cryptic remarks as completely misconstruing the departure authority discussed in Woods and Ross. U.S. v. Riza, 267 F.3d 757 (8th Cir. 2001).
8th Circuit finds no evidence that court was unaware of authority to depart from career offender guideline. (860) Defendant challenged the district court’s denial of his motion for a downward departure. He cited U.S. v. Rivers, 50 F.3d 1126 (2d Cir. 1995), for the proposition that a sentencing court has discretion to depart downward where it believed that career offender status would lead to a sentence out of proportion to the defendant’s actual criminal history. The Eighth Circuit found no error since it was clear the court did not hold such a belief. At sentencing, the judge told him, “you have earned, I think, the status of a career offender and it is … entirely appropriate for you to be sentenced accordingly.” There was no evidence that the district court misunderstood its discretion. U.S. v. Soltero-Corona, 258 F.3d 858 (8th Cir. 2001).
8th Circuit concludes that court was aware of authority to make diminished capacity departure. (860) Defendant argued that the court did not believe that it had the authority to depart downward under USSG § 5K2.13 for his diminished mental capacity during the time he committed the crime. The Eighth Circuit, however, concluded that the district court was aware of its departure authority, and thus, the refusal to depart was not reviewable. Defense counsel raised the possibility of a § 5K2.13 departure and moved for a full psychiatric evaluation prior to sentencing. The court granted the motion and ordered the exam, which resulted in a report indicating that defendant suffered from substance abuse and an adjustment disorder with depressed mood, but that his mental capacity was not significantly diminished. During sentencing, the court discussed defendant’s statement that he had been diagnosed as bipolar manic depressive, and immediately before declaring judgment, mentioned that it found no basis on which to depart. In light of the court’s granting of the motion for an evaluation and its discussion of defendant’s possible mental illness, it was clear that the court was aware of its ability to depart in an appropriate case. U.S. v. Hartje, 251 F.3d 771 (8th Cir. 2001).
8th Circuit holds that court was aware of authority to depart. (860) Defendant attempted to challenge two prior state misdemeanor convictions in which guilty pleas were allegedly entered without his knowledge. He requested his public defender files from the cases, but was informed that the files had been destroyed pursuant to a policy that called for the destruction of misdemeanor file materials one year after the close of the case. After the district court refused to exclude these misdemeanor convictions from his criminal history, defendant unsuccessfully moved for a downward departure based on the state public defender’s case-file retention policy. The Eighth Circuit refused to review the matter. The record made clear that the district court considered defendant’s arguments and concluded that they did not support a downward departure. The court’s refusal to depart was premised ultimately on its belief that the circumstances presented by the file-retention policy resulted in no prejudice to defendant and that the facts of the case failed to disclose a basis which should result in a different sentence. U.S. v. Moore, 245 F.3d 1023 (8th Cir. 2001).
8th Circuit finds refusal to depart not reviewable. (860) Defendant contended that the district court erred by not granting his motion for a downward departure based on an overstated criminal history. However, a discretionary denial of a downward departure is not reviewable unless the district court determined that it lacked authority to consider a particular mitigating factor. Here, there was no indication in the record that the district court did not recognize its authority to depart. In his argument and motion, defendant’s counsel specifically referenced USSG § 4A1.3, which authorizes such a departure if the district court finds it warranted. In ruling on the motion, the court did not state a belief that it lacked authority to depart, but instead, concluded that the criminal history calculation did not overrepresent defendant’s criminal history. Thus, the Eighth Circuit ruled that the refusal to depart was not reviewable. U.S. v. Lim, 235 F.3d 382 (8th Cir. 2000).
8th Circuit cannot review refusal to grant family circumstances departure. (860) Defendant argued that he deserved a departure under § 5H1.6 for his extraordinary family circumstances. He contended that he was the sole or primary provider for his family, that he was raising his teenage sons by himself, and that, after his arrest, his sons were forced to return to Mexico to live with their mother, where their “living conditions are quite desperate.” The Eighth Circuit found it had no authority to review the matter. The district court was aware of its authority to depart on the basis of extraordinary family circumstances, but simply decided in its discretion not to do so. Such a decision is unreviewable. “Serious crime often has lamentable consequences, and not for the defendant only.” U.S. v. Bahena, 223 F.3d 797 (8th Cir. 2000).
8th Circuit upholds refusal to depart for deportable alien. (860) Defendant was convicted of drug trafficking charges and received a sentence of 168 months. He argued that the district court should have departed downward because, as a deportable alien, the sentence has inflicted an exceptional hardship on him. His status will result in his being incarcerated under more severe conditions, perhaps being excluded from community confinement programs or incarceration in minimum security facilities. The Eighth Circuit found it had no jurisdiction to review the argument. First the district court was aware of its authority to depart, but declined to exercise it, finding that defendant’s status as a deportable alien “has not resulted in unusual or exceptional hardships in his conditions of confinement to an extent sufficient to warrant a departure.” Since defendant was convicted of trafficking in a large quantity of drugs, the court found it unlikely that defendant would have been placed in a minimum security facility anyway. Moreover, even if the decision were reviewable, the refusal to depart was not an abuse of discretion. Defendant’s status as a deportable alien was entirely attributable to his own voluntary acts. U.S. v. Bahena, 223 F.3d 797 (8th Cir. 2000).
8th Circuit upholds longer sentence after vacation of § 924(c) sentences. (860) Defendant originally received a sentence of 350 months for his drug and money laundering offenses, and consecutive sentences of 60 months and 240 months for two § 924(c) offenses, for a total sentence of 650 months. The district court later granted his § 2255 petition to vacate his 924(c) convictions in light of Bailey v. United States, 516 U.S. 137 (1995). At resentencing, the court assessed a § 2D1.1(b)(1) firearm increase, resulting in an offense level of 43 and a mandatory life sentence. Defendant requested a downward departure, claiming that the guidelines did not contemplate a situation where the vacating of two § 924(c) convictions results in a longer overall sentence. The Eighth Circuit held that the court’s refusal to depart was unreviewable, since the court was aware of its authority to depart and decided defendant’s case was not suitable for a departure. The panel also rejected defendant’s claim that the increased sentence was the result of vindictiveness. Previous cases have upheld the assessment of a § 2D1.1(b)(1) enhancement after a § 924(c) conviction is vacated and that conviction was part of a multi-count sentencing package. The enhancement resulted in the same sentence defendant would have received had he been acquitted of the two § 924(c) counts. U.S. v. Edwards, 225 F.3d 991 (8th Cir. 2000).
8th Circuit cannot review refusal to depart for physical impairment and family situation. (860) Defendant sought a downward departure based on an extraordinary physical impairment and an extraordinary family situation. See USSG §§ 5H1.4 & 5H1.6. The district court heard testimony by two doctors and defendant concerning his back and leg pain. Defendant and his wife also testified as to their financial condition and the difficulties of raising school-age children in a rural location. The court then concluded that defendant’s health and family situation were not sufficiently extraordinary and declined to depart downward. The Eighth Circuit ruled that the court’s decision not to depart was unreviewable, since the court was aware of its authority to depart. The court’s refusal to depart was an exercise of its sentencing discretion that was unreviewable on appeal. U.S. v. Orozco-Rodriguez, 220 F.3d 940 (8th Cir. 2000).
8th Circuit upholds refusal to depart based on status as deportable alien. (860) The district court rejected defendant’s request to depart downward based on his status as a deportable alien. Defendant argued that the court’s denial of his motion was reviewable because (1) the court made an erroneous factual finding that defendant’s benefit from not having to serve the supervised release portion of his sentence outweighed the more onerous conditions of confinement, and (2) the decision not to depart had subjected him to harsher conditions of confinement based on his alienage. The Eighth Circuit ruled that the district court chose not to depart for permissible reasons, and its exercise of discretion was not reviewable. The court did not make a factual finding that avoiding three years of supervised release outweighed the detriment of having to leave the country. The court’s comparison was not a finding of fact, but simply a discretionary weighing of the circumstances of defendant’s case. Defendant was not subjected to harsher punishment because of his alienage, but because of his deportability, which was a result of his voluntary act of entering the country illegally and committing an aggravated felony. U.S. v. Navarro, 218 F.3d 895 (8th Cir. 2000).
8th Circuit finds no evidence that court was unaware of authority to depart downward. (860) Defendant asked the district court to depart downward based on two factors that he contended were present to an extraordinary degree. First, he argued that his criminal history score overstated the seriousness of his criminal record. Moreover, he urged that his commission of the crime was caused or influenced by mental illness. The district court refused to depart downward on the basis of these factors, considered either singly or in combination. An appellate court has no jurisdiction to review a refusal to depart unless the district court was unaware to its authority to depart and declined to do so for that reason. The Eighth Circuit found no evidence that the experienced district judge was unaware to his authority. Instead, he simply declined to exercise his discretion in defendant’s favor for the reasons suggested. U.S. v. Shepard, 207 F.3d 455 (8th Cir. 2000).
8th Circuit cannot review where court was aware of its discretion to depart. (860) Defendant and several friends started a fire that resulted in the death of six firefighters. The district court applied § 2A1.1, the first-degree murder guideline, to calculate defendant’s base offense level for arson resulting in death. Under § 2A1.1, the court may depart downward if the defendant did not cause the death intentionally or knowingly. Defendant argued that the district court erred in not departing downward for this reason. The Eighth Circuit held that it had no jurisdiction to review the refusal to depart because the district court was aware of its discretion to depart. U.S. v. Edwards, 159 F.3d 1117 (8th Cir. 1998).
8th Circuit holds refusal to depart downward was not reviewable. (860) Defendant was convicted of drug and money laundering charges. He argued that the district court abused its discretion in denying his motion for a downward departure based on his advanced age and poor health and the relative disparity between his guidelines range sentence and the sentences imposed on his co-conspirators. The Eighth Circuit held that the court’s refusal to depart downward was unreviewable on appeal. The district court acknowledged its authority to depart but concluded that the facts did not justify a downward departure. Moreover, disparity in sentences among conspirators is not a proper basis for departure. U.S. v. Eastman, 149 F.3d 802 (8th Cir. 1998).
8th Circuit cannot review extent of downward departure. (860) Defendant originally received a 61-month sentence. This was the result of a three-level downward departure for coercion and a substantial assistance departure. Since the parties had neglected to inform the court about a stipulation affecting the sentence, the court reconvened the hearing and then imposed a sentence of 57 months. Defendant again received a reduction for coercion and a substantial assistance departure, and the 57-month sentence she received was 40 months below the new guideline range. Defendant argued that she was entitled to the same number of months’ departure as she originally received. The Eighth Circuit held that it had no jurisdiction to review this claim because the extent a downward departure is not reviewable on appeal. U.S. v. Puckett, 147 F.3d 765 (8th Cir. 1998).
8th Circuit will not review court’s refusal to grant diminished capacity departure. (860) Defendant was convicted of drug crimes. He sought a downward departure on the basis of a reduced mental capacity. The district court refused. Defendant argued that the court’s erroneous finding that he did not have a reduced mental capacity led it to mistakenly believe that it did not have authority to depart. The Eighth Circuit refused to review the matter. The district court clearly stated during the sentencing hearing that although it had the ability to depart where a defendant’s mental capacity contributed to the crime, it refused to do so because defendant’s mental capacity was not significantly reduced, and even if it was lower than normal, it did not contribute to the commission of the offense. The court clearly recognized its authority to depart and therefore, the court’s decision to depart was unreviewable on appeal. U.S. v. Jones, 145 F.3d 959 (8th Cir. 1998).
8th Circuit has no discretion to review refusal to make downward departure. (860) Defendant argued that the district court erred in denying his motion for a downward departure. The Eighth Circuit held that it lacked jurisdiction to review the court’s refusal to depart. The court was clearly aware of its discretion to depart downward, considered defendant’s request for a downward departure, and rejected that request. U.S. v. Turechek, 138 F.3d 1226 (8th Cir. 1998).
8th Circuit says it cannot review extent of Rule 35(b) departure. (860) Defendant pled guilty to drug charges and did not appeal from his 135-month sentence. The government filed a Rule 35(b) motion, which the district court granted and resentenced him to 84 months. Defendant appealed, arguing that the court should have departed further. The Eighth Circuit held that it lacked jurisdiction to review the extent of the departure. Defendant was not appealing his sentence based on any criteria listed in 18 U.S.C. § 3742(a). U.S. v. Coppedge, 135 F.3d 598 (8th Cir. 1998).
8th Circuit cannot review refusal to depart based on defendant’s health. (860) Defendant, 42 years old, had numerous physical limitations including glaucoma, septic arthritis, uncontrolled hypertension, possible avascular necrosis, degenerative arthritis in both hips and required a total hip replacement. Defendant argued that the district court should have departed downward under § 5H1.4. The Eighth Circuit found the court’s discretionary refusal to depart downward was not reviewable. The court acknowledged defendant’s serious health problems, but found no evidence that the disability prevented him from being managed in prison. U.S. v. Eagle, 133 F.3d 608 (8th Cir. 1998).
8th Circuit holds that court properly understood its authority to depart. (860) Defendant moved for a downward departure based on his status as a political refugee. He presented evidence that he resided in a refugee camp for ten years beginning at age 6, had no formal education, and was likely to be deported after his incarceration. The district court found that defendant’s status as a political refugee was not, by itself, grounds for departure, but that under Koon, it was free to take into account defendant’s personal circumstances. The court then found that defendant’s circumstances did not warrant a downward departure. The Eighth Circuit held that the court properly understood its authority to depart and therefore its refusal to depart was not reviewable. The court was correct that defendant’s status as an alien was not, by itself, sufficient to warrant a departure. Thus, the court correctly understood that its discretionary authority to depart rested upon a determination that the circumstances of the case were exceptional and atypical. Its decision not to exercise that discretion was not reviewable. U.S. v. Saelee, 123 F.3d 1024 (8th Cir. 1997).
8th Circuit rules court did not make mechanical decision not to depart. (860) Defendant pled guilty to reentering the U.S. after having been arrested and deported. In the plea agreement, defendant agreed to an administrative order of deportation and waived his right to appeal that order. In return, the government moved for a downward departure under § 5K2.0 based on the administrative deportation. The district court denied the motion after considering “all of the circumstances,” including both defendant’s and societal concerns about recidivism of aliens. The court explained that unless there was an extraordinary situation it would not grant such a motion, and that its decision was consistent with the policy that it had adopted. Defendant argued that the court reached its decision “mechanically,” i.e. did not exercise its discretion but made a predetermined mechanical decision not to depart. The Eighth Circuit ruled that the court did not make a mechanical decision not to depart. The court considered defendant’s individual circumstances. The judge noted that while he was generally opposed to downward departures on this basis, he departs downward in extraordinary situations. Because the court occasionally grants a downward departure, it was forced to examine defendant’s situation to determine whether it was extraordinary. U.S. v. Hernandez-Reyes, 114 F.3d 800 (8th Cir. 1997).
8th Circuit says court recognized authority to depart based on economic hardship to innocent employees. (860) Defendant contended that the district court erred by not recognizing its authority to depart downward on the basis of economic hardship to innocent third parties, namely his family and the employees of his business. The Eighth Circuit held that the district court properly recognized its authority to depart in exceptional circumstances, even though family and community ties are not ordinarily relevant in determining whether to depart. The court stated that it considered defendant’s argument in support of a downward departure and concluded that there were no grounds that justified a departure in this case. U.S. v. Field, 110 F.3d 587 (8th Cir. 1997).
8th Circuit has no discretion to review refusal to depart. (860) Defendant argued that he should have received a criminal history downward departure. The Eighth Circuit held that the claim was not reviewable on appeal because the district court was aware that it had authority to depart but declined to do so. In denying a departure, the court stated “on the basis of what I’ve heard I’m not going to depart.” U.S. v. Hawkins, 102 F.3d 973 (8th Cir. 1996).
8th Circuit lacks discretion to review refusal to depart. (860) Defendant argued that the district court abused its discretion at sentencing by failing to depart based on an overstated criminal history under § 4A1.3 and an extraordinary physical impairment under § 5H1.4. The Eighth Circuit held that it lacked jurisdiction to review these issues because the court was aware of its authority to grant a downward departure but declined to do so. U.S. v. Uder, 98 F.3d 1039 (8th Cir. 1996).
8th Circuit refuses to review role increase where overall sentence was a downward departure. (860) Defendant argued that the district court should not have enhanced his sentence for his leadership role in a massive drug trafficking network. The Eighth Circuit held that the issue was not reviewable because defendant’s overall sentence was a downward departure from the sentence that would have resulted if he had prevailed on this point. Defendant’s argument also failed on the merits. Defendant clearly directed or procured the aid of underlings, and was responsible for organizing others to carry out crimes. Defendant himself admitted that he was one of the “big players” in the drug conspiracy. The district court specifically found that defendant had more than a dozen subordinates. U.S. v. Williams, 97 F.3d 240 (8th Cir. 1996).
8th Circuit rules court not required to examine each of the factors listed in § 5K1.1. (860) Defendant argued that the district court relied on improper factors in determining the extent of a downward departure under § 5K1.1 and in refusing to depart below the mandatory minimum. He claimed that in deciding the extent of a downward departure, a district court may only use the factors outlined in § 5K1.1, along with others that generally relate to the defendant’s assistance. The Eighth Circuit refused to examine the extent of the downward departure. The district court properly considered defendant’s assistance when ruling on the government’s motions. A court is not required to examine each of the factors listed in § 5K1.1 on the record and explain exactly just what weight it gives to each in its departure decision. The district court did not err in denying the government’s § 3553(e) motion to depart below the statutory minimum. The district court knew it had discretion to depart and simply declined to exercise it. U.S. v. McCarthy, 97 F.3d 1562 (8th Cir. 1996).
8th Circuit says discretionary decision not to depart under § 4A1.3 is not reviewable. (860) Defendant appealed the court’s refusal to depart downward based on an over-represented criminal history. Although defendant had 25 criminal history points, the bulk of his prior convictions were for thefts in which defendant stole property to support his crack cocaine addiction. The Eighth Circuit held that the district court’s discretionary decision not to depart downward under § 4A1.3 was not reviewable. U.S. v. Shaw, 94 F.3d 438 (8th Cir. 1996).
8th Circuit finds judge knew he could depart based on PSR and arguments from both parties. (860) Defendant claimed that the judge’s comments showed he was unaware of his authority to depart downward for criminal history. The Eighth Circuit found that the judge was aware of his authority to depart because the PSR specifically addressed the appropriateness of a § 4A1.3 departure and both parties addressed the issue at sentencing. The judge found that a departure was inappropriate because category I was reserved for individuals with no criminal record or a minor blemish, while defendant had four criminal incidents. The judge’s statement that he was not certain he had the actual authority to depart must be viewed in the overall context of the judge’s comments. U.S. v. Payne, 81 F.3d 759 (8th Cir. 1996).
8th Circuit says involvement in five year drug conspiracy was not aberrant behavior. (860) Defendant was involved in a five year conspiracy to distribute cocaine and launder money. Defendant requested a downward departure based on the “unique circumstances” of the case and the fact that his behavior was an aberrant occurrence. The Eighth Circuit held that it lacked jurisdiction to review the claim. The court recognized its authority to depart under § 5K2.0 and simply chose not to exercise that discretion based on the facts of the case. Moreover, the facts were not so unusual as to warrant a departure. Defendant’s ongoing involvement in the drug conspiracy and in the transfer of drug proceeds over a five‑year period does not constitute aberrant behavior. A departure is permitted for a spontaneous and seemingly thoughtless act. U.S. v. Jenkins, 78 F.3d 1283 (8th Cir. 1996).
8th Circuit refuses to review extent of downward departures. (860) Defendant claimed that his 57-month sentence created an unwarranted disparity between his punishment and that of his co-conspirator. The Eighth Circuit found this claim lacked merit, since the extent of a downward departure is not reviewable on appeal. Both defendant and his co-conspirator cooperated with law enforcement agencies and received downward departures at sentencing. In essence, defendant was challenging the relative extent of the departures, which is not reviewable. U.S. v. Goodwin, 72 F.3d 88 (8th Cir. 1995).
8th Circuit lacks discretion to review enhancement where sentence was already below applicable range. (860) Defendant challenged a firearm enhancement under § 2D1.1(b)(1). The Eighth Circuit held that it lacked discretion to review the issue because defendant’s sentence was below the applicable guideline range with or without the challenged enhancement. Moreover, defendant received a statutory minimum sentence of ten years. The district court could not depart below the mandatory minimum absent a government motion under 18 U.S.C. § 3553(e) for substantial assistance. U.S. v. Baker, 64 F.3d 439 (8th Cir. 1995).
8th Circuit reaffirms that extent of downward departure is not reviewable. (860) Defendant argued that the district court erred in not granting her a greater downward departure. The Eighth Circuit held that it was bound by precedent holding that the extent of a district court’s downward departure is not reviewable. U.S. v. Logan, 54 F.3d 452 (8th Cir. 1995).
8th Circuit will not review refusal to depart based on defendant’s age and health. (860) Defendant requested a downward departure based on his age and health. He submitted an affidavit attesting to his age and physical condition. The Eighth Circuit refused to review the district court’s rejection of defendant’s motion, since it was an exercise of discretion. Although defendant claimed he was deprived of the opportunity to respond to the government’s argument opposing his motion, defendant remained silent when the district court gave the parties an opportunity to make further statements before ruling on the motion. Defendant’s challenge to his substantial assistance departure amounted to a challenge to the extent of the departure, a matter not subject to appellate review. U.S. v. Kessler, 48 F.3d 1064 (8th Cir. 1995).
8th Circuit has no jurisdiction to review sentence at top of guideline range. (860) Defendant appealed the imposition of the maximum sentence within his applicable guideline range. The 8th Circuit held that it lacked jurisdiction to review the sentence. The district court was not required to state its reasons for imposing the maximum sentence where, as here, the applicable range was less than 24 months. U.S. v. Garrido, 38 F.3d 981 (8th Cir. 1994).
8th Circuit holds relevant conduct not appealable where defendant received downward departure from mandatory minimum. (860) Defendant argued that the district court erroneously included in his sentencing calculation drug quantities from his dismissed counts. The 8th Circuit found that the issue was not appealable, since defendant received a substantial downward departure below an otherwise applicable mandatory minimum. The extent of such a departure is not reviewable on appeal. Moreover, even if the sentence was reviewable, a sentencing court may consider, as relevant conduct, the conduct charged in dismissed counts. U.S. v. Karam, 38 F.3d 467 (8th Cir. 1994).
8th Circuit says failure to depart not reviewable. (860) Defendant argued that the trial court erred in refusing to depart downward. The 8th Circuit found that the decision was not reviewable for an abuse of discretion. The transcript of the sentencing hearing made it clear that the court was aware of its authority to depart but chose not to do so. U.S. v. Bowling, 32 F.3d 326 (8th Cir. 1994).
8th Circuit refuses to review failure to depart. (860) Defendant argued that the trial court improperly failed to depart downward from the guidelines. The 8th Circuit refused to review the decision. It was clear from the transcript that the trial court considered the possibility of downward departure and rejected it. The decision was neither reviewable nor an abuse of discretion. U.S. v. James, 30 F.3d 84 (8th Cir. 1994).
8th Circuit says enhancements are not reviewable if overall sentence was a downward departure. (860) Defendant challenged a weapon enhancement under § 2D1.1(b)(1) and the denial of a minor role reduction under § 3B1.2(b). The 8th Circuit held that these issues were not appealable, since defendant’s sentence still represented a downward departure from the sentencing range that would have resulted if he had prevailed on both points. Moreover, there was no error. Defendant carried a loaded firearm while harvesting marijuana on a marijuana patch. Although he claimed that he carried the gun to disguise himself as a squirrel hunter, defendant posed a risk of danger to anyone who might have approached him on the patch. Defendant was not a minor participant because he harvested the marijuana and was to receive one-half of the marijuana he picked. U.S. v. Wyatt, 26 F.3d 863 (8th Cir. 1994).
8th Circuit will not review refusal to depart based on rehabilitation from heroin addiction. (860) Defendant argued that his attempt to rehabilitate himself from his heroin addiction should have resulted in a downward departure. The 8th Circuit found that effort was laudable, and could be considered in the context of acceptance of responsibility. However, it would not review the matter, because it lacked authority to review a discretionary refusal to depart downward. U.S. v. Blanc, 24 F.3d 1029 (8th Cir. 1994).
8th Circuit says comments showed judge recognized departure was not justified. (860) Defendants argued that the district court erroneously believed it lacked authority to depart downward based on their family circumstances. The judge stated that if it were up to him, he would place defendants on probation, but that “under the facts of this case . . . I don’t have any authority to depart downward from the guidelines.” The 8th Circuit found this statement did not demonstrate the judge’s belief that he was barred as a matter of law from departing. Rather, the judge’s comments acknowledged that a downward departure was not justified. Moreover, even if the court did believe it had no authority to depart, the refusal to depart was not erroneous. Although the incarceration of both parents of two small children was troubling, it was no more extraordinary than the incarceration of a single parent, for which a downward departure is not permitted. U.S. v. Bieri, 21 F.3d 811 (8th Cir. 1994).
8th Circuit holds that court was aware of its ability to depart downward. (860) At sentencing, the district court stated “There’s no ground for departure here. I have no way to depart.” “I can’t depart when we’ve got a mandatory minimum.” Defendant argued that the district court erroneously believed that it lacked authority to depart downward based on mitigating circumstances. The 8th Circuit interpreted the court’s statements differently. The district court expressed its dismay regarding the severe sentences for crack cocaine offenses and left no doubt that it believed the sentence required by law was overly severe. However, in light of the court’s overall comments and its downward departures in similar cases, the district court clearly knew that it had the discretionary authority to depart downward, fervently wanted to exercise that discretion, but could not find a valid reason to do so. U.S. v. Robinson, 20 F.3d 320 (8th Cir. 1994).
8th Circuit refuses to review failure to depart for disproportionate sentence. (860) Defendant argued that a district court may depart under § 5K2.0 where the sentence is disproportionate to the crime because the guidelines fail to adequately reflect mitigating factors or because the circumstances of the case are atypical. The 8th Circuit refused to consider this claim, since the district court made it clear that it did not choose to exercise its discretion to depart. A district court’s discretionary refusal to depart downward is not reviewable. U.S. v. Brown, 18 F.3d 1424 (8th Cir. 1994).
8th Circuit concludes that court was aware of its authority to depart downward. (860) In refusing to depart downward, the district judge stated, “I am of the opinion and therefore find that the Court will not provide for its-its discretion to depart downward.” The 8th Circuit held that this showed the district court clearly recognized that it had authority to consider a downward departure, but determined that no departure was warranted. Thus, the district court’s refusal to depart was not reviewable. Kok v. U.S., 17 F.3d 247 (8th Cir. 1994).
8th Circuit refuses to review failure to depart based on defendant’s diabetes. (860) Defendant argued that the district court should have departed under § 5H1.4 (extraordinary physical impairment) because he suffered from diabetes. The 8th Circuit reaffirmed that it had no authority to review a sentencing court’s exercise of its discretion not to make a downward departure. The district court was aware of its authority to depart, and refused to do so. U.S. v. Fischl, 16 F.3d 927 (8th Cir. 1994).
8th Circuit remands where court believed government motion was required for all departures. (860) The district court rejected defendants’ request for a downward departure, stating that absent a motion from the government, it was bound by the offense level determined under the guidelines. It also stated that the sentence was the minimum sentence it could impose. The 8th Circuit remanded to consider defendants’ motions to depart under § 5K2.0. Factors warranting a departure under § 5K2.0 might well exist in this case. U.S. v. Parham, 16 F.3d 844 (8th Cir. 1994).
8th Circuit refuses to review failure to depart based on outrageous government conduct. (860) Defendant argued the trial court should have departed downward because of the government’s outrageous conduct in selecting a protected location as the site of a second drug transaction. The 8th Circuit refused to review the decision, since the district court was aware of its ability to depart. U.S. v. Holmes, 13 F.3d 1217 (8th Cir. 1994).
8th Circuit rejects appeal where defendant’s sentence was much lower than guidelines. (860) Defendant had a guideline range of 210 to 262 months. His plea agreement provided that he could move, without government opposition, for a downward departure under section 4A1.3 to a sentence of not less than 121 months. He did so, and received a 121-month sentence. The 8th Circuit rejected his appeal. Defendant conceded in his plea agreement that he was subject to a sentencing range of 210 to 262 months, and he ultimately received a much lower sentence. Under the circumstances, he had no basis for an appeal. U.S. v. Patterson, 11 F.3d 824 (8th Cir. 1993).
8th Circuit holds that refusal to depart for criminal history is not reviewable on appeal. (860) The 8th Circuit held that an appellate court does not have jurisdiction to review a refusal to depart for criminal history under section 4A1.3 when the sentencing court is aware of its authority to depart. Cases reviewing refusals to depart under the abuse of discretion standard did not analyze the jurisdictional issue and merely relied on U.S. v. Justice, 877 F.3d 664 (8th Cir.), cert. denied, 493 U.S. 958 (1989). Justice, however, did not discuss the jurisdictional issue and thus did not decide it. Later cases have held that an appellate court may not review a refusal to depart under section 5K2.0. There is no distinction in 18 U.S.C. § 3742 between refusals to depart under section 5K2.0 and refusals to depart under section 4A1.3. Defendant’s claim that the district court was not aware of its authority to depart under section 4A1.3 was meritless. U.S. v. Hall, 7 F.3d 1394 (8th Cir. 1993).
8th Circuit remands to consider downward departure for career offender. (860) Defendant argued that the district court should have departed downward because his career offender classification exaggerated the gravity of his earlier criminal activities. The 8th Circuit remanded for consideration of this issue. At the sentencing hearing, the district court did not acknowledge its power to depart under section 4A1.3 or address defendant’s argument for departure. This was understandable because defendant only raised this issue in a paper filed 10 minutes before sentencing. Because the district court did not realize that defendant was seeking a departure under section 4A1.3, the case was remanded. Senior Judge Lay, believing defendant’s 30-year sentence was extreme, concurred separately to emphasize prior opinions that have approved downward departures in similar situations. U.S. v. Gayles, 1 F.3d 735 (8th Cir. 1993).
8th Circuit rules that defendant waived challenges to use of prior felonies. (860) The 8th Circuit ruled that defendant waived his challenge to the use of a 1964 juvenile conviction for enhancement purposes under 18 U.S.C. §924(e). His counsel stated at sentencing that they were challenging all of defendant’s prior convictions, except for his 1964 juvenile convictions. Defendant’s claim that two other convictions should not be considered because his sentence was commuted was not addressed below either. The district court’s reliance on these convictions was not plain error. U.S. v. Petty, 1 F.3d 695 (8th Cir. 1993).
8th Circuit rules judge was aware of his ability to depart based on family circumstances. (860) The district judge refused to depart based on defendant’s family responsibilities. The 8th Circuit found the refusal to depart unreviewable since the judge was aware of his authority to depart. The judge’s reference to an earlier case indicated that he understood that under exceptional circumstances he possessed the discretion to depart downward, but that such circumstances were not present here. Senior Judge Bright concurred, finding no error in the refusal to depart, but noting that the circumstances might have supported a downward departure based on extreme hardship to defendant’s family. U.S. v. Vidrickson, 998 F.2d 601 (8th Cir. 1993).
8th Circuit upholds refusal to depart despite government’s soliciting repeated sales and fact that co-conspirators were prosecuted by state. (860) Defendant argued that a downward departure was warranted because he was solicited by the government to make repeated sales, which substantially increased his sentence. He also contended a departure was warranted because he was the only one of 30 persons prosecuted in federal court. The others were prosecuted in state court. The 8th Circuit affirmed the denial of the motion to depart, noting that a district court’s decision not to depart is not reviewable. U.S. v. Taylor, 986 F.2d 297 (8th Cir. 1993).
8th Circuit rejects claim of disproportionate downward departures. (860) Defendants argued that their sentences were disproportionate to those given to their co-defendants, contending that the court improperly failed to depart to the same degree that it did in other cases. The 8th Circuit held that this issue was not reviewable, since it raised an issue concerning the extent of a substantial assistance departure. Moreover, a sentence is not disproportionate just because it exceeds a co-defendant’s sentence. Defendants failed to take into account the many different factors that the district court relied upon to reach appropriate sentences for all of the co- defendants who pled guilty and provided assistance to the government. U.S. v. Womack, 985 F.2d 395 (8th Cir. 1993).
8th Circuit rejects downward departure where prior DWI violations were old. (860) Defendant received four criminal history points based on three prior DWI convictions: two in 1981 and one in 1984. Defendant argued that the district court should have departed downward because the “stale and remote traffic violations” should not increase his sentence from a minimum of 70 months to a maximum of 108 months. The 8th Circuit rejected the claim. Section 4A1.3 suggests that a district court “may” consider a downward departure in cases where the seriousness of a defendant’s criminal history is overstated. Here, the court considered, but rejected, such a downward departure. “The exercise of discretion by a district court to refuse to depart downward is nonreviewable” U.S. v. Mahler, 984 F.2d 899 (8th Cir. 1993).
8th Circuit affirms that it cannot review refusal to depart downward. (860) The 8th Circuit refused to review the district court’s decision to depart downward. The district court’s conclusion that mitigating circumstances justifying a departure did not exist was an exercise of discretion that is not reviewable on appeal. Senior Judge Heaney dissented. U.S. v. Edgar, 971 F.2d 89 (8th Cir. 1992).
8th Circuit affirms that district court was aware of its authority to depart downward. (860) The 8th Circuit rejected defendant’s claim that the district court erroneously believed that it did not have the authority to depart downward. A review of the transcript indicated that the district court was fully aware of its prerogative but nonetheless concluded that the facts of this case did not warrant a departure. U.S. v. LaChapelle, 969 F.2d 632 (8th Cir. 1992).
8th Circuit upholds refusal to depart based upon extraordinary rehabilitation but notes that government motion is not required. (860) The district court denied defendant’s request for a downward departure based upon her rehabilitation, finding that the circumstances did not warrant a downward departure. However, the court also expressed its view that it could not depart in the absence of a government motion. The 8th Circuit affirmed, since it lacked authority to review a sentencing court’s exercise of its discretion to refrain from departing downward. However, it noted that contrary to the judge’s view, a sentencing judge may depart downward without a government motion in unusual circumstances such as extraordinary restitution. U.S. v. Condelee, 961 F.2d 1351 (8th Cir. 1992).
8th Circuit rejects due process challenge based on disparity in extent of substantial assistance departures. (860) Defendants argued that the downward departures they received for assistance to the government were insufficient because of the greater departures granted to their co-conspirators. The 8th Circuit held that it lacked jurisdiction to review the extent of a downward departure. However, the court found that it did have jurisdiction under 18 U.S.C. section 3742(a)(1) to review defendant’s tangential claim that the disparate sentences violated due process. The court found the argument meritless. Defendants were heavily involved in the conspiracy, and although each provided assistance in convicting one of their co-conspirators, no additional evidence of any value was provided. It was possible that one of the defendant’s assistance would have been of much greater value if he decided to cooperate at an earlier date. Defendants benefited from greatly reduced sentences. Mere disparity does not demonstrate an abuse of discretion. U.S. v. Albers, 961 F.2d 710 (8th Cir. 1992).
8th Circuit rejects delay in release date on unrelated conviction as basis for departure. (860) As a result of defendants’ failure to appear to serve a pre-guidelines sentence, the Parole Commission added 10 months to their probable release dates. Defendants subsequently pled guilty to failing to surrender for service of sentence, and each received an eight-month sentence for this offense. The 8th Circuit rejected defendants’ claim that the district court should have departed downward because the total 18 months imprisonment they received as a result of their failure to surrender (eight-month sentence plus a 10-month delay in release on the other charge) exceeded the guideline range of 8 to 14 months. There is no caselaw or sentencing guideline that requires a court to depart downward because conduct that resulted in a criminal conviction also resulted in a delay in a defendant’s probable release date from a prison sentence for a prior, unrelated conviction. Moreover, the court lacked authority to review the district court’s refusal to depart downward. U.S. v. McGowan, 960 F.2d 716 (8th Cir. 1992).
8th Circuit holds it has no jurisdiction to review extent of downward departure. (860) Defendant complained that the district court abused its discretion by departing downward from the guideline range by only one month (from 121 months to 120) pursuant to the government’s motion under section 5K1.1. The 8th Circuit found that defendant misread the record and that it lacked jurisdiction to review the extent of the departure. The district court reduced defendant’s sentencing range from 188 to 235 months to 97 to 121 months. The court then sentenced defendant to one month less than the maximum in that range. A defendant’s challenge to a district court’s decision to depart downward or to the degree of its departure is not reviewable on appeal. U.S. v. Lyon, 959 F.2d 701 (8th Cir. 1992).
8th Circuit refuses to review sentence at top of properly calculated guideline range. (860) The 8th Circuit found that it lacked jurisdiction to consider defendant’s claim that the district court abused its discretion in sentencing him at the top of his guideline range. A sentence is not reviewable merely because it is at the top of a properly calculated guideline range. The sentencing range did not span more than 24 months, which would trigger the requirement that the district court state its reasons for imposing a sentence at a particular point within that range. U.S. v. Woodrum, 959 F.2d 100 (8th Cir. 1992).
8th Circuit rules district court was aware of its ability to depart downward from career offender guidelines. (860) The 8th Circuit rejected defendant’s claim that the district court was unaware of its ability to depart downward from the career offender guidelines. Instead the court chose to reject defendant’s contention that the career offender guidelines exaggerated his criminal history. A district court’s decision not to depart downward, when it was aware of its authority to do so, is not reviewable by an appellate court. U.S. v. Mau, 958 F.2d 234 (8th Cir. 1992).
8th Circuit refuses to review failure to depart downward. (860) Defendant spent 10 months between his federal indictment and sentencing in federal custody because when indicted, he was serving a two-year sentence on related state charges. He received no credit toward his federal sentence for this time served, but did receive credit toward his state sentence. Defendant argued that he would have been paroled by the state had he not been in federal custody, and therefore was forced to serve two sentences consecutively that would otherwise have been served concurrently, thus justifying a downward departure. The 8th Circuit held that it lacked discretion to review a district court’s discretionary decision to deny a downward departure under section 5K2.0. U.S. v. Wilson, 955 F.2d 547 (8th Cir. 1992).
8th Circuit refuses to review failure to depart downward despite recommendation in presentence report. (860) The 8th Circuit refused to review the district court’s refusal to make a downward criminal history departure, despite a recommendation for such a departure in defendant’s presentence report. A refusal to depart from the guidelines is generally not reviewable. U.S. v. Haren, 952 F.2d 190 (8th Cir. 1991).
8th Circuit refuses to review refusal to depart based upon diminished capacity and substantial assistance. (860) Defendant contended that the circumstances of his offense constituted mitigating circumstances for which the district court should have departed downward under guideline section 5K2.0. Further, he contended that the district court erred in failing to depart based upon his diminished capacity and for his substantial assistance. The 8th Circuit held that the district court’s decision not to depart under section 5K2.0 was not reviewable. Moreover, defendant’s failure to raise the substantial assistance and diminished capacity issues before the district court precluded the appellate court’s consideration of the issues. U.S. v. Schneider, 948 F.2d 1074 (8th Cir. 1991).
8th Circuit refuses to review refusal to depart based upon drug dependency. (860) The 8th Circuit refused to review defendant’s claim that the district court erred in denying his motion to depart based on his drug dependency and prospects for rehabilitation. Guideline section 5H1.4 specifically mentions that alcohol and drug dependence are not reasons for downward departures. The appellate court was not empowered to review the district court’s refusal to depart. U.S. v. Laird, 948 F.2d 444 (8th Cir. 1991).
8th Circuit finds judge was aware he had authority to depart downward. (860) The 8th Circuit rejected defendant’s claim that the district court mistakenly believed it lacked authority to depart downward. Defendant pointed to the judge’s statement that he did not have “a free hand to roam about in the imposition of punishment, but must stay within the guidelines” and that the jail time was “a little heavy,” but that he was following the guidelines, and had “no discretion to legitimately exercise beyond that point.” The judge’s statements at the sentencing hearing, taken as a whole, showed that he understood that there were occasions in which the facts would warrant a departure, but that this case was not one of them. U.S. v. West, 942 F.2d 528 (8th Cir. 1991).
8th Circuit rejects downward criminal history departure based upon prior DWI violations. (860) Defendant contended that his criminal history category was overstated because of two 1982 convictions of driving while intoxicated. The 8th Circuit disagreed, since these are not minor traffic infractions under guideline § 4A1.2(c). Moreover, the district court’s refusal to depart downward from the guidelines range is nonreviewable. U.S. v. Fuller, 942 F.2d 454 (8th Cir. 1991).
8th Circuit holds it has no authority to review extent of downward departure for substantial assistance. (860) Defendant contended that the district court failed to depart below the statutory minimum sentence as promised in his plea agreement and as requested by the government in its motion under guideline § 5K1.1. The 8th Circuit rejected these arguments, since in sentencing defendant to 114 months, the district court did depart below the guideline range of 151 to 188 months and the statutory minimum of 120 months. Defendant essentially was arguing that the court failed to make a substantial enough departure, a decision the court found unreviewable. U.S. v. Sharp, 931 F.2d 1310 (8th Cir. 1991).
8th Circuit rejects minimal or minor status based upon quantity of cocaine. (860) The 8th Circuit rejected defendant’s argument that he was entitled to minor or minimal participant status. Given the 3.5 to 4 kilograms of cocaine stipulated by defendant in his plea agreement, and defendant’s participation throughout the entire drug transaction, the district court’s determination that defendant was not a minor or minimal participant was not clearly erroneous. The court also found that defendant’s request that he be sentenced at the low end of the guidelines range was non-reviewable. U.S. v. Hutchinson, 926 F.2d 746 (8th Cir. 1991).
8th Circuit holds it lacks authority to review failure to depart downward. (860) Defendant argued that the district court abused its discretion by not departing downward on the basis of mitigating circumstances that were not adequately considered in the guidelines. The 8th Circuit refused to review the issue, holding that it lacked authority to do so under 18 U.S.C. § 3742(e). U.S. v. Brown, 921 F.2d 785 (8th Cir. 1990).
8th Circuit upholds three month sentence for defendant who entered into sham marriage to evade immigration laws. (860) Defendant entered into a sham marriage in order to obtain permanent residency in the United States. She contended that her three-month prison sentence under the sentencing guidelines was “mechanistically determined and excessive.” The 8th Circuit upheld the sentence. Defendant did not argue that the guidelines were incorrectly applied or that her sentence was outside the guideline range. The applicable guideline range was two to eight months. The district court did not abuse its discretion by imposing a three month sentence or by deciding not to depart from the appropriate guideline range. U.S. v. Vickerage, 921 F.2d 143 (8th Cir. 1990).
8th Circuit finds district court properly understood its authority to depart downward. (860) Defendant’s applicable guideline was 70 to 87 months, however, the statutory maximum for his offense was 60 months. The district court accordingly sentenced defendant to 60 months. The 8th Circuit rejected defendant’s argument that the district court mistakenly believed it did not have the authority to depart below the 60 month sentence. The district court expressly noted that it was “not disposed to grant” a downward departure and that it found no reason to depart downward. U.S. v. Sayers, 919 F.2d 1321 (8th Cir. 1990).
8th Circuit reaffirms that it may not, on defendant’s motion, review extent of downward departure. (860) Defendant contended that the district court should have made more of a downward departure in light of his substantial assistance to the government, his failure to profit substantially from his drug dealings, and the prospect that he would be more than 60 years old at the time of his release under the current sentence. The 8th Circuit found that the district court considered these factors in determining the sentence. Moreover, an appellate court cannot not review the extent of a downward departure on a defendant’s motion. U.S. v. Ybabez, 919 F.2d 508 (8th Cir. 1990).
8th Circuit finds district court exercised discretion not to make downward departure. (860) Defendant contended that the district court improperly believed that it lacked the power to make a downward departure. The judge stated “Well, I don’t see how I could justify a downward departure under the facts of this case at all except to just say that I think the guidelines are set too severe which I sometimes do, but that’s not my determination. I’ve got to go by the guidelines.” The 8th Circuit found this statement reflected a discretionary decision not depart based upon the facts of the case. U.S. v. Yerks, 918 F.2d 1371 (8th Cir. 1990).
8th Circuit holds defendant not entitled to same downward departure as his co-defendants. (860) Defendant argued that his sentence created an unwarranted disparity between his sentence and the sentences imposed upon his co-defendants. The 8th Circuit rejected this argument, noting that the primary reason for the difference in sentence was that the co-defendants received a downward departure for substantial assistance to the government. The district court’s refusal to grant a downward departure was not reviewable. U.S. v. Keene, 915 F.2d 1164 (8th Cir. 1990).
8th Circuit holds that district court’ refusal to grant substantial assistance departure is not reviewable on appeal. (860)) Defendant agreed after the trial to cooperate in the government’s investigation of drug trafficking. He asserted that he made a good faith effort to provide substantial assistance to the government, and claimed that the district court therefore erroneously refused to reduce the sentence under § 5K1.1. The 10th Circuit held that the district court’s refusal to depart under that section was nonreviewable and even if it were that the court had no authority to even consider a downward departure because the government had not made a motion as required by that section. However, the court noted that a motion by the government may not be necessary if the government’s refusal to make such a motion had violated the defendant’s right to due process, a claim which was not alleged in this case. U.S. v. Dobynes, 905 F.2d 1192 (8th Cir. 1990).
8th Circuit reaffirms ruling that refusal to depart downward is not reviewable on appeal. (860) Defendant argued that the district court erred in refusing to depart downward on the basis of his psychological problems and diminished mental capacity. Reaffirming its earlier ruling, the 8th Circuit held that the district court’s refusal to depart downward is not reviewable on appeal. U.S. v. Follett, 905 F.2d 195 (8th Cir. 1990).
8th Circuit refuses to hear defendant’s appeal regarding extent of downward departure. (860) The district court departed downward from a range of 51 to 63 months to 48 months. Defendant appealed, arguing the departure downward was insufficient. The 8th Circuit refused to review the extent of departure. “If, as we held in U.S. v. Evidente, 894 F.2d 1000, 1003 (8th Cir. 1990), we may not review the question whether a district court abused its discretion in refusing to depart, certainly we may not review the extent of departure.” U.S. v. Left Hand Bull, 901 F.2d 647 (8th Cir. 1990).
8th Circuit holds that refusal to depart is not reviewable on appeal. (860) Agreeing with the 1st, 2nd, 3rd, 5th, 6th, 7th and 11th Circuits, the 8th Circuit held that it “simply is not empowered under 18 U.S.C. § 3742, or any other statute, to review a sentencing court’s exercise of its discretion to refrain from departing either upward or downward from the range established by the applicable guideline.” The 8th Circuit reiterated this holding in another case decided the same day. U.S. v. Tibesar, 894 F.2d 317 (8th Cir. 1990);. The court stated that appellate review was available, however, if the district court “somehow believed it lacked power to exercise discretion.” U.S. v. Evidente, 894 F.2d 1000 (8th Cir. 1990).
9th Circuit declines to review failure to depart from guidelines range. (860) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, he sought a downward departure under Application Note 8 to §2L1.2, which allows for a downward departure for some defendants convicted of illegal reentry on the basis of “cultural assimilation.” The district court denied the departure, and the Ninth Circuit reaffirmed that it did not review district court decisions not to depart from the guidelines range. The court rejected defendant’s argument that the 2010 amendments to § 1B1.1 abrogated prior decisions barring review of decisions not to depart. U.S. v. Vasquez-Cruz, 692 F.3d 1001 (9th Cir. 2012).
9th Circuit amends opinion to delete holding that departure Guidelines remain “operative” and that refusal to depart is unreviewable. (860) In U.S. v. Dallman, 526 F.3d 551 (9th Cir. 2008), the court rejected defendant’s claim that the district court erred in refusing to depart downward based on aberrant behavior. In that opinion, the court held that the departure guidelines remain “operative” and that the denial of a motion for a downward departure remains unreviewable. In an amended opinion, the court deleted those two statements. Instead, the court held that it could consider defendant’s contention that the district court erred in failing to depart on aberrant-behavior grounds as part of its review of the overall reasonableness of the sentence. U.S. v. Dallman, 533 F.3d 755 (9th Cir. 2008).
9th Circuit says departure Guidelines remain “operative” and that refusal to depart is unreviewable. (860) Defendant, convicted of importing marijuana, sought a downward departure at sentencing. The district court denied that request and sentenced defendant within the Guidelines range. Defendant appealed, arguing that the district court erred in refusing to depart downward. The Ninth Circuit held that after Booker, “the departure Guidelines are still operative, and an accurate guideline range calculation may still properly require consideration and correct application of the departure Guidelines.” The court held, however, that the denial of motion for a downward departure remains unreviewable. U.S. v. Dallman, __ F.3d __ (9th Cir. May 19, 2008) No. 05-30349.
9th Circuit finds no jurisdiction when district court says it lacks discretion but would not depart if it could. (860) At defendant’s sentencing, the district court denied defendant’s request for a departure by saying, “I don’t think this record warrants it, and I don’t believe…I have the authority regardless.” The Ninth Circuit held that when a district court indicates both that it lacks discretion and that if it had discretion it would nevertheless refuse to exercise it, the court of appeals lacks jurisdiction to review the decision not to depart. U.S. v. Asberry, 394 F.3d 712 (9th Cir. 2005).
9th Circuit finds that district court’s failure to acknowledge authority to depart required remand. (860) At sentencing, the district court noted that the Sentencing Commission was “trying to take out any possible departures,” but did not otherwise acknowledge that it had the authority to depart from the guideline range based on the grounds asserted by defendant. A divided panel of the Ninth Circuit remanded to allow the district court to consider whether to depart. U.S. v. Arellano-Gallegos, 387 F.3d 794 (9th Cir. 2003).
9th Circuit finds that despite court’s frustration over guidelines it understood authority to depart. (860) Defendant sought a downward departure on the ground that because he did not understand English or the American legal system, he did not appreciate the wrongfulness of his conduct. Defendant also argued that his case was not within the heartland of the guideline that governed his sentence. As to the first ground, the district court found evidence that defendant understood the nature of his offense and stated that it would not exercise its discretion to grant a downward departure. As to defendant’s claim that his case was not within the heartland, the district court agreed that the guideline range exceeded the seriousness of defendant’s offense, but declined to exercise its discretion to depart. In both instances, the Ninth Circuit found that the court understood its discretion to depart and refused to exercise it and thus that the court of appeals lacked jurisdiction over defendant’s challenge to the district court’s failure to depart. U.S. v. You, 382 F.3d 958 (9th Cir. 2004).
9th Circuit holds that PROTECT Act does not authorize appeal of discretionary refusals to depart. (860) In the PROTECT Act, Congress amended 18 U.S.C. § 3742 to change the courts of appeals’ standard of review for departures from abuse of discretion to de novo. The Ninth Circuit rejected the argument that this amendment authorized defendants to appeal from a district court’s discretionary refusal to depart from the guideline range. U.S. v. Linn, 362 F.3d 1261 (9th Cir. 2004).
9th Circuit finds district court considered whether to depart for imperfect duress. (860) Defendant, an illegal alien, was induced to smuggle other illegal aliens into the U.S. when she could not pay the fee demanded to smuggle her into the country. At her sentencing for alien smuggling, the district court rejected defendant’s contention that she should receive a downward departure for imperfect duress on the ground that the smuggler’s alleged threats to defendant did not just justify her actions. The Ninth Circuit held that the district court had considered and rejected defendant’s imperfect duress departure request, and the discretionary refusal to depart was not appealable. U.S. v. Lopez-Garcia, 316 F.3d 967 (9th Cir. 2003).
9th Circuit finds court understood it could depart for duress, aberrant behavior. (860) In his sentencing memoranda, defendant sought a departure on the grounds of duress and aberrant behavior and because his offense was outside the “heartland” of cases contemplated by the Guidelines. The district court noted the proposed grounds of departure, but declined to exercise its discretion to depart. In discussing the duress departure, however, the court added that it did not think that defendant had shown that he committed the offense because of coercion or duress “that would complete the offense.” The Ninth Circuit held that in light of defendant’s discussion of a duress departure in his sentencing memorandum, this phrase did indicate that the district court wrongly believed that defendant had to show duress sufficient to constitute a complete defense to the crime. The court of appeals also found that the district court’s factual findings in denying a duress departure were not clearly erroneous. Finally, it found no basis for concluding that the district court had rested its refusal to depart on aberrant behavior and outside-the-heartland grounds on a mistaken view of the law. U.S. v. Pizzichiello, 272 F.3d 1232 (9th Cir. 2001).
9th Circuit finds district court’s failure to address departure meant it exercised discretion not to depart. (860) Defendant sought a downward departure under both § 5K2.13 and § 5K2.0 on the ground that he committed his offense while suffering from significantly reduced mental capacity. The district court found that defendant was not eligible for a departure under § 5K2.13, but it did not address his argument under § 5K2.0. The Ninth Circuit dismissed defendant’s appeal to the extent it challenged the district court’s refusal to depart under § 5K2.0. The court concluded that the district court’s silence on this issue meant that it had assumed that it had the authority under § 5K2.0 to depart but exercised its discretion not to do so. U.S. v. Davis, 264 F.3d 813 (9th Cir. 2001).
9th Circuit bases fraud loss on entire amount of loan, without deduction for collateral. (860) The Ninth Circuit held that the district court’s finding that defendant did not intend to repay the loan of $5.4 million was not clearly erroneous. Under the guidelines, the court had discretion to grant a downward departure based on the collateral pledged to secure the loan. See U.S. v. Shaw, 3 F.3d 311, 314 (9th Cir. 1993). However here the district court acknowledged its authority to grant a downward departure but declined to do so. Relying on U.S. v. Lipman, 133 F.3d 726, 729 (9th Cir. 1998), the Ninth Circuit said it had “no jurisdiction to review a district court’s discretionary denial of a downward departure request.” U.S. v. Najjor, 255 F.3d 979 (9th Cir. 2001).
9th Circuit says refusal to depart for ineffective counsel was discretionary and unreviewable. (860) The Ninth Circuit found that “[a]lthough the district court did not specifically address its authority to depart downward on the basis of ineffective assistance of counsel, it is clear from the record that his refusal to depart downward was not based on a belief that it lacked the authority to depart downward for that reason, but rather, was an exercise of its discretion.” The district court considered the arguments and found that defendant himself was responsible for his higher sentence by failing to accept the plea agreement. Moreover, the government never argued that the court lacked authority to depart on the basis of ineffective assistance of counsel. Finally, the fact that the district court cited Koon v. U.S., 518 U.S. 81 (1996) demonstrated that the court was aware that it had authority to depart. Accordingly, the Ninth Circuit held that it lacked jurisdiction to review the district court’s failure to depart down based on ineffective assistance of counsel. U.S. v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000).
9th Circuit finds judge knew he could depart for aberrant behavior despite contrary remarks. (860) A district court may depart downward based on a defendant’s aberrant behavior. U.S. v. Colace, 126 F.3d 1229, 1231 (9th Cir. 1997). In this case, the district court made some comments suggesting it believed it lacked authority to depart downward. However, the Ninth Circuit found that the court ultimately recognized and exercised its discretion not to depart. Although the district judge remarked at one point that he lacked the authority to depart downward, he later implicitly recognized that he did have this authority and that the facts did not justify its exercise. U.S. v. Daas, 198 F.3d 1167 (9th Cir. 1999).
9th Circuit finds court knew it could depart based on defendant’s status as a deportable alien. (860) Under U.S. v. Cubillos, 91 F.3d 1342, 1344 (9th Cir. 1996), the district court had discretion to depart downward because deportable aliens may be unable to take advantage of the up to six months of home confinement authorized by 18 U.S.C. § 3624(c). Defendant argued that the court may have believed it lacked discretion because it asked for caselaw on departures based on § 3624(c), which defendant failed to provide. The Ninth Circuit said that “[a]sking counsel for citations does not establish a failure to exercise discretion.” The court repeatedly asked defense counsel how defendant’s status as a deportable alien brought his case “out of the heartland of cases.” This is the very inquiry demanded by Cubillos and Koon v. U.S., 518 U.S. 81 (1996). It appeared that the district court did not find defendant ineligible for departure, but that even as a deportable alien, no departure was warranted. U.S. v. Davoudi, 172 F.3d 1130 (9th Cir. 1999).
9th Circuit cannot review discretionary refusal to depart. (860) Defendant argued that the district court erred in failing to grant his motions for downward departures based on his exceptional post-conviction rehabilitation and the fact that the Bureau of Prisons allegedly refused to enroll him in a specific drug and alcohol rehabilitation program. The district court expressly stated that it recognized it had authority to depart downward but declined to do so. Accordingly, the Ninth Circuit held that it lacked authority to review the district court’s discretionary refusal to depart downward. U.S. v. Hock, 172 F.3d 676 (9th Cir. 1999).
9th Circuit says refusal to depart for defendant’s mental condition was not reviewable. (860) The district court declined to exercise its discretion to depart downward based on defendants mental condition, including his severe headaches. Relying on U.S. v. Webster, 108 F.3d 1156, 1158 (9th Cir. 1997), the Ninth Circuit held that “[s]uch a discretionary refusal to depart is not reviewable on appeal. U.S. v. Mikaelian, 168 F.3d 380 (9th Cir. 1999).
9th Circuit says judge’s comments did not indicate that it lacked discretion to depart from the guidelines. (860) At sentencing, the district judge said that it was “tragic that sentences of summary probation and non-meaningful sentences are imposed in our state courts.” He speculated that if meaningful sentences were meted out in state courts, people like the defendant in this case would not “ultimately come into federal court under the sentencing guidelines and face . . . extremely serious consequences in terms of sentencings.” Defendant argued that these comments somehow warranted a remand for resentencing. The Ninth Circuit rejected the argument, stating that because the district court did not indicate that it lacked discretion to depart from the guidelines, “we have no authority to review its refusal to do so.” U.S. v. Govan, 152 F.3d 1088 (9th Cir. 1998).
9th Circuit withdraws opinion that “mere silence” did not indicate court was unaware it could depart. (860) In U.S. v. Hinojosa-Gonzalez, 132 F.3d 1314 (9th Cir. 1997), the Ninth Circuit ruled that the district court’s failure to address defendant’s downward departure motion did not amount to a failure to exercise discretion. Citing U.S. v. Brown, 985 F.2d 478, 489 (9th Cir. 1993), the court said that “mere silence is inadequate evidence the district court was unaware of its authority to depart.” On April 2, 1998, the Ninth Circuit withdrew this opinion and filed a new opinion that did not discuss this issue. U.S. v. Hinojosa-Gonzalez, 142 F.3d 1122 (9th Cir. 1998).
9th Circuit says court’s refusal to depart was discretionary, despite words “no choice.” (860) The district court refused to depart downward to Criminal History Category I. During sentencing, the court said it was “required” to consider defendant’s 25-year-old conviction. Defense counsel asked if the court was saying “you feel you have no choice in the matter,” and the court replied, “It’s my understanding.” On appeal, the Ninth Circuit rejected defendant’s argument that this indicated that the district court did not realize it had discretion to depart. Rather, the court was simply “making clear that the Guidelines required it to take the conviction into account in initially computing [defendant’s] criminal history category, despite the fact that he had been pardoned.” The court’s silence regarding authority to depart was not sufficient to indicate that the court believed it lacked power to depart. U.S. v. Ladum, 141 F.3d 1328 (9th Cir. 1998).
9th Circuit cannot review refusal to depart downward because another district offers “fast-track” plea agreements. (860) The defendant was convicted in the Central District of California of re-entry after deportation in violation of 8 U.S.C. § 1326. At sentencing, the district court declined to depart downward based on the failure of the U.S. Attorney for the Central District to offer the “fast-track” plea agreement available in the Southern District of California. On appeal, the Ninth Circuit held that it lacked jurisdiction to review the issue. “A district court’s decision not to depart downward is beyond appellate review unless the court indicates that it was prohibited as a matter of law from doing so.” “In this case, the district court exercised its discretion not to depart because the reason advanced was not sufficient to warrant departure.” Judge Hawkins concurred in the judgment. U.S. v. Gomez-Gutierrez, 140 F.3d 1287 (9th Cir. 1998).
9th Circuit says decision not to depart for imperfect entrapment or extraordinary citizenship was not reviewable. (860) The Ninth Circuit held that to the extent that defendant was claiming that his case fell outside the “heartland” based on imperfect entrapment or extraordinary citizenship, the district court declined to depart downward on those claims. Because the district court exercised its discretion, the court of appeals “has no jurisdiction to review that decision.” U.S. v. Tucker, 133 F.3d 1208 (9th Cir. 1998).
9th Circuit says court “need not say affirmatively that it had discretion to depart.” (860) Defendant argued that the district court erroneously concluded as a matter of law that it lacked authority to depart downward for “cultural assimilation.” The district court said, “I cannot find that the tie—the . . . cultural assimilation into U.S. society . . . is a ground for a downward departure.” The Ninth Circuit rejected the argument, noting that under U.S. v. Webster, 108 F.3d 1156, 1158-59 (9th Cir. 1992), a district court “need not say affirmatively that it had discretion to depart.” In this case, the district court’s explanation of its denial “sufficiently indicates that the court recognized its authority to consider cultural assimilation as a potential basis for departure and reflects its discretionary decision not to do so in this case based upon the facts presented.” The court said defendant’s cultural assimilation was not a “ground for a downward departure” after it considered his circumstances and determined that they were only “somewhat different” from “the typical case.” U.S. v. Lipman, 133 F.3d 726 (9th Cir. 1998).
9th Circuit says rejection of departure “in its entirety” in alien case was discretionary. (860) Defendant argued that the district court erred in refusing to depart downward because “as an alien, he will suffer greater punishment in the Bureau of Prisons and because he agreed to an expedited deportation.” The Ninth Circuit rejected the argument, noting that a district court’s discretionary refusal to depart downward is unreviewable on appeal. The court rejected defendant’s argument that the court’s statement that he was denying the departure “in its entirety” showed that the court believed it had no authority to depart. The court said “[t]his language demonstrates nothing of the kind. At sentencing neither party argued that the district court was without authority to depart.” The district court’s use of “forceful terms” did not reflect a mistaken belief that it lacked authority to depart. U.S. v. Gutierrez-Cervantez, 132 F.3d 460 (9th Cir. 1997).
9th Circuit bars aberrant behavior departure where defendant spent eight months in cocaine conspiracy. (860) The district court ruled that it had no authority to depart for aberrant behavior on the facts of this case, stating that it was aware that this decision could be reviewed because he was not exercising his discretion not to depart downward. On appeal, the Ninth Circuit agreed that the court could not depart downward for aberrant behavior. Defendant’s participation in a cocaine distribution scheme “required substantial planning and involved hundreds of overt acts spanning a period of at least eight months.” The fact that he had been a hardworking, law abiding, exemplary citizen did not make his conduct aberrant. The absence of criminal history is not synonymous with aberrant behavior. See U.S. v. Green, 105 F.3d 1321, 1323 (9th Cir. 1997). Defendant’s criminal conduct reached a significant level of regularity and spanned a considerable period of time. U.S. v. Pierson, 121 F.3d 560 ( 9th Cir. 1997).
9th Circuit says comment, “I do not see any grounds for departure,” showed discretion. (860) The Ninth Circuit held that the judge’s comment, “I’ve searched the guidelines, and I, frankly, do not see any grounds for departure,” indicated that she found no reason to depart, not that she believed she lacked authority to do so. The court of appeals lacks jurisdiction to review a district court’s discretionary refusal to depart downward from the guidelines. The judge’s concern over defendant’s continuous criminal activity also indicated that she was aware of her authority to depart. The court need not say affirmatively that it had discretion to depart. U.S. v. Webster, 108 F.3d 1156 (9th Cir. 1997).
9th Circuit finds court exercised its discretion in declining to depart in alien case. (860) The district court did depart downward on the ground that defendant’s criminal history category was over-represented. However, despite defendant’s argument that his prior offense was “minor,” it refused to depart downward from the 16-level adjustment in § 2L1.2(b)(2) for deported aliens found in the U.S. after conviction of an aggravated felony. The district court considered defendant’s individual circumstances “without indicating that it was constrained not to do so.” The Ninth Circuit was therefore satisfied that the court’s refusal to depart further than it did was discretionary. U.S. v. Flores-Uribe, 106 F.3d 1485 (9th Cir. 1997).
9th Circuit says refusal to depart for “post-offense rehabilitation” is not reviewable. (860) Defendant argued that the district court refused to depart for post-offense rehabilitation because it believed it lacked the authority to do so. While the district court discussed the case law in this area, it ultimately concluded that it did not find a “compelling reason” to depart downward on the basis of post-offense rehabilitation. The Ninth Circuit said that it “appears the court’s ruling was discretionary, rather than a ruling that post-offense rehabilitation is an impermissible ground for departure.” Therefore, the decision was unreviewable on appeal. U.S. v. Lopez, 106 F.3d 309 (9th Cir. 1997).
9th Circuit says discretionary refusal to depart for criminal history is not reviewable. (860) At the sentencing hearing the district court found that defendant’s criminal history score did not over-represent his criminal history, and it exercised its discretion not to depart downward. The court said “[w]e lack authority to review that decision.” U.S. v. Ruelas, 106 F.3d 1416 (9th Cir. 1997).
9th Circuit says extent of downward departure is not reviewable. (860) In imposing a fine on this organizational defendant, the district court departed downward from the minimum guideline fine of $6,425,013 under the Chapter 8 guidelines, and imposed a fine of only $1.5 million. On appeal, the defendant organization argued that the fine was still too great, but the Ninth Circuit held that “the extent to which a district court chooses to exercise its discretion to depart downward in sentencing is not reviewable on appeal.” This is so regardless of whether the sentence is for a prison term or a fine. U.S. v. Eureka Laboratories Inc., 103 F.3d 908 (9th Cir. 1996).
9th Circuit finds decision not to depart downward was discretionary. (860) After the court sentenced defendant without a downward departure, government counsel asked the court to clarify and the court said, “I deny that.” Government counsel said, “Is it a discretionary—.” The court answered, “Yes, I deny that.” On appeal, the Ninth Circuit held that this was sufficient to indicate that the district court exercised its discretion in not departing downward. Under U.S. v. Pinto, 48 F.3d 384, 389 (9th Cir.), cert. denied, 116 S.Ct. 125 (1995), “decisions to deny downward departure will be considered discretionary unless the district court indicates that its refusal to depart rests on its view that it could not as a matter of law do so.” Therefore the court lacked jurisdiction to review the failure to depart on this ground. U.S. v. Berger, 103 F.3d 67 (9th Cir. 1996).
9th Circuit says denial of government’s substantial assistance motion is unreviewable. (860) Defendant argued that, in denying the government’s motion for a downward departure based on the defendant’s substantial assistance under § 5K1.1, the district court failed to exercise its discretion in the manner prescribed by the sentencing guidelines and therefore imposed an illegal sentence. The Ninth Circuit rejected the argument, ruling that a district court’s discretionary refusal to depart downward under § 5K1.1 is unreviewable on appeal. It was clear that the district court knew it could depart but chose not to do so. U.S. v. Hanna, 49 F.3d 572 (9th Cir. 1995).
9th Circuit says refusal to depart will be considered discretionary absent contrary indication. (860) Reiterating its holding in U.S. v. Belden, 957 F.2d 671, 676 (9th Cir.) cert denied, 113 S.Ct. 234 (1992), the Ninth Circuit held that “decisions to deny downward departure will be considered discretionary unless the district court indicates that its refusal to depart rests on its view that it could not as a matter of law do so.” In this case, “[s]ince the judge’s decision does not indicate that he believed he was prevented from departing downward as a matter of law, the decision is discretionary and thus not reviewable.” U.S. v. Pinto, 48 F.3d 384 (9th Cir. 1995).
9th Circuit dismisses appeal of extent of departure despite claim that court believed it could not depart. (860) The district court departed downward for extraordinary family circumstances, but not to the extent that defendant would have liked. Defendant attempted to characterize her appeal of the extent of the downward departure as an appeal of the district court’s alleged erroneous belief that it lacked discretion to depart downward. The 9th Circuit ruled that it had no jurisdiction to entertain her appeal since she was essentially challenging the extent of the downward departure. Nothing in the record indicated that the district court believed it lacked discretion to depart for the reasons offered by defendant. U.S. v. Riggins, 40 F.3d 1055 (9th Cir. 1994).
9th Circuit finds refusal to depart further was appealable because based on legal conclusion. (860) The 9th Circuit recognized that if the judge’s refusal to depart further downward from the statutory minimum is simply a discretionary decision, the appellate court lacks jurisdiction to entertain an appeal. But here, the district court’s refusal to depart further for substantial assistance was based on its legal conclusion that it could not impose probation, and therefore it sentenced defendant to six months in custody. Accordingly, the sentence was reviewed de novo and affirmed. U.S. v. Roth, 32 F.3d 437 (9th Cir. 1994).
9th Circuit upholds order to reimburse government for attorney’s fees in lieu of fine. (860) Defendant argued that the district court erred in ordering him to reimburse the government for attorney’s fees and costs in lieu of a fine. The 9th Circuit rejected the argument, holding that the district court had discretion to impose fees in lieu of the fine recommended in the guidelines. The dollar amount of the penalty was well within the guideline range. U.S. v. Eaton, 31 F.3d 789 (9th Cir. 1994).
9th Circuit finds court exercised discretion in denying aberrant behavior departure. (860) The district court departed downward from level 20 to level 11, but on appeal, defendant argued that the court should have departed further based on “aberrant behavior.” At the time of sentencing, the district court did not mention aberrant behavior, but simply stated that it was denying defendant’s objections to the presentence report and that “I do not find mitigating circumstances that would warrant the court to depart downward.” The 9th Circuit found that the court’s remarks provided a clear indication that the judge was exercising his discretion. Moreover, it was clear from the judge’s comments that he would not have departed downward even if he could have. Thus, the appellate court had no jurisdiction to consider defendant’s “aberrant behavior” claim. U.S. v. Eaton, 31 F.3d 789 (9th Cir. 1994).
9th Circuit reaffirms no review of discretionary refusal to depart. (860) The district court expressly stated that “[i]n the exercise of its discretion, the court finds that departure is not warranted.” This decision is not subject to review. U.S. v. Jones, 24 F.3d 1177 (9th Cir. 1994).
9th Circuit finds decision not to depart downward was discretionary. (860) The district court said, “You know this is a tough case, but even were I to depart for aberrant behavior, it would be in such a minor degree that it wouldn’t be terribly important to him, and I don’t think it’s justified. I agree with the Probation Office that it’s close, but it doesn’t quite get there.” The 9th Circuit held that the judge’s words indicated that it recognized its authority to depart but merely declined to do so. Accordingly, under U.S. v. Morales, 898 F.2d 99, 103 (9th Cir. 1990), the 9th Circuit lacked jurisdiction to review the judge’s refusal to depart. U.S. v. Burnett, 16 F.3d 358 (9th Cir. 1994).
9th Circuit reaffirms no jurisdiction to review discretionary refusal to depart. (860) Defendant argued that the district court failed to realize that it had the authority to depart downward based on his age and medical condition. The Ninth Circuit found nothing to suggest that the district court was under the impression that it could not depart downward if it chose to do so. Relying on U.S. v. Morales, 972 F.2d 1007, 1011 (9th Cir. 1992), cert. denied, 113 S.Ct. 1665 (1993), the court again noted that a discretionary refusal to depart from the guidelines is not reviewable on appeal. U.S. v. Heim, 15 F.3d 830 (9th Cir. 1994).
9th Circuit finds no double jeopardy in 20-year sentence after probation violation. (860) The Idaho state judge withheld imposing judgment, and placed defendant on probation for five years. Defendant was also ordered to spend 60 days in the county jail. Defendant later violated his probation and was sentenced to 20 years, with all but the first 11 months suspended, after which he was again placed on probation. When he violated probation a second time he was ordered to serve the remainder of the 20-year sentence. In this federal habeas corpus case, defendant argued that the double jeopardy clause prohibited him from being sentenced to 20 years after he had served 60 days in the county jail for the same offense. The 9th Circuit rejected the argument, relying on U.S. v. Clayton, 588 F.2d 1288 (9th Cir. 1979), and ruling that the imposition of a sentence after suspension of judgment is permissible, even if the defendant has served time as a condition of probation. Peltier v. Wright, 15 F.3d 860 (9th Cir. 1994).
9th Circuit finds that district court believed it had no discretion to depart downward. (860) Because the record supported an inference that the sentencing court’s refusal to depart rested on the court’s conviction that it lacked discretion to do so, the 9th Circuit treated the refusal as a product of the court’s interpretation of the guidelines, subject to de novo review. U.S. v. Cantu, 12 F.3d 1506 (9th Cir. 1993).
9th Circuit says decision not to depart is not reviewable unless judge thought he could not depart. (860) A sentencing court’s decision not to depart from the guidelines “is not reviewable unless the decision resulted from a legal determination that the guidelines prevented departure.” U.S. v. Brown, 985 F.2d 478, 480 (9th Cir. 1993). Here the judge stated that “while there may be an opportunity to exercise my discretion for departure in this case, I do not.” This discretionary decision was not reviewable. U.S. v. Arias-Villanueva, 998 F.2d 1491 (9th Cir. 1993), implied overruling recognized by U.S. v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007).
9th Circuit finds that, in refusing to depart downward, court exercised its discretion. (860) The 9th Circuit has repeatedly held that it lacks jurisdiction to review a district court’s discretionary decision to depart downward. To overcome this, the defendant argued that the district court in this case did not recognize that it had discretion to depart. The Circuit was unpersuaded, ruling that in deciding not to depart, the district court “exercised its discretionary authority.” U.S. v. Rivera, 996 F.2d 993 (9th Cir. 1993).
9th Circuit says refusal to depart for aberrant behavior was unreviewable. (860) The district court stated that, “I don’t believe I have authority to depart downward because of an aberrational act in this case. I think the case is clearly distinguishable from Takai and any other cases that touch on this point.” The 9th Circuit held that by distinguishing U.S. v. Takai, 941 F.2d 738, 743 (9th Cir. 1991), “the district court recognized that it had authority to depart, but that the facts did not warrant such a departure in this case.” In other words the district court made a “discretionary decision not to depart downward based on aberrant behavior,” and such a decision is not reviewable. U.S. v. Beamon, 992 F.2d 1009 (9th Cir. 1993)
9th Circuit declines to review discretionary refusal to depart based on aberrant behavior. (860) Defendant sought a discretionary downward departure in this bird smuggling case on the ground that her involvement was “aberrant behavior.” The district court noted that the case involved 36 separate transactions and refused to depart downward. The Ninth Circuit declined to review the decision, finding the district court recognized its authority to depart and simply exercised the discretion not to do so. U.S. v. Parker, 991 F.2d 1493 (9th Cir. 1993).
9th Circuit rejects claim that defendant’s diabetes and poverty forced him to rob banks. (860) Defendant argued that the district court should have departed downward under section 5K2.12 for coercion and duress, resulting from a combination of his severe diabetes and poverty. He contended that the circumstances forced him to turn to robbing banks to get money to pay for necessary insulin to treat his illness. The district court refused to depart, and on appeal, the 9th Circuit ruled that this discretionary refusal to depart was not reviewable. The district court properly determined that under section 5K2.12 the coercion and duress claimed by the defendant was not sufficient to warrant a downward departure. The court also properly refused to depart downward under section 5K2.0. U.S. v. Gardner, 988 F.2d 82 (9th Cir. 1993).
9th Circuit finds no jurisdiction to review refusal to depart for governmental misconduct. (860) Defendant argued the district court erred in failing to depart downward on the basis that the government had entrapped him into purchasing a greater amount of cocaine than he had planned. The Ninth Circuit dismissed the appeal, finding it lacked jurisdiction to consider the merits of the outrageous governmental conduct argument because the district court exercised its discretion not to depart. A discretionary decision not to depart is not reviewable on appeal. U.S. v. Paschall, 988 F.2d 972 (9th Cir. 1993).
9th Circuit reviews refusal to depart where court believed it lacked discretion to depart. (860) The 9th Circuit will not review a district court’s discretionary refusal to depart downward. U.S. v. Morales, 898 F.2d 99, 102 (9th Cir. 1990). But here the district court refused to depart because, according to its interpretation of the guidelines and caselaw, it had no discretion to depart. Under U.S. v. Goroza, 941 F.2d 905, 908 (9th Cir. 1991), this ruling was reviewable on appeal. U.S. v. Martinez-Guerrero, 987 F.2d 618 (9th Cir. 1993).
9th Circuit declines to review discretionary decision not to depart downward. (860) Defendant argued that the court should have departed downward based on his age (63) and medical infirmity and based on the needs of the S’Klallam tribe to enforce its culturally-based sexual abuse program. However, the district judge expressly stated that he was not making a finding that he could not depart downward. “Rather I have concluded that I’m not going to depart downward.” Accordingly, the 9th Circuit declined to review the district court’s discretionary refusal to depart downward. U.S. v. Fulton, 987 F.2d 631 (9th Cir. 1993).
9th Circuit finds no indication that court believed it lacked authority to depart downward. (860) Defendant argued that the district court erroneously believed it lacked authority to depart downward. But the 9th Circuit found no indication in the record that the district court believed it lack authority to depart downward. “When it is not otherwise in dispute, a district court’s silence regarding authority to depart is not sufficient to indicate that the court believed it lacked the power to depart.” The court’s statement at sentencing that it lacked authority to disregard attempted first degree burglary as a qualifying offense in the face of the plain language of section 4B1.2 “does not support [defendant’s] contention that the court believed it lacked authority to depart downward.” U.S. v. Jackson, 986 F.2d 312 (9th Cir. 1993).
9th Circuit reviews ambiguous decision not to depart. (860) Defendant was convicted of bank robbery and argued the district court erred in refusing to depart downward from the career offender guideline range. The 9th Circuit concluded that the district court acted under the erroneous impression it lacked authority to depart and remanded the case for resentencing. Although the court’s comments indicated both a discretionary refusal to depart as well as a finding it lacked authority to depart, the ambiguity was resolved in favor of reviewability. To hold otherwise would unfairly foreclose defendant from having his sentence reviewed. U.S. v. Brown, 985 F.2d 478 (9th Cir. 1993).
9th Circuit refuses to depart for family ties and family member’s informing the police. (860) The district court ruled that defendant’s family circumstances were “not sufficiently unusual to justify departure.” The 9th Circuit upheld this decision as consistent with the guidelines’ policy to downplay the relevance of family ties. See U.S.S.G. section 5H1.6. “Moreover, since it was a discretionary refusal to depart downward it is not reviewable on appeal.” Similar considerations supported the refusal to depart downward because the defendant’s mother was the informant. “A family member’s informing the police is not a mitigating circumstance within the meaning of 18 U.S.C. section 3553(b) or U.S.S.G. section 5K2.0.” U.S. v. Shrewsberry, 980 F.2d 1296 (9th Cir. 1992).
9th Circuit holds refusal to depart based on public service was discretionary. (860) At sentencing, defendant argued that the Sentencing Commission did not adequately consider public service as a mitigating factor and had several witnesses testify to his good character, his service as a city council member and his involvement in conservation groups. However, because the district court recognized its authority to depart but found that “service to the public . . . cannot justify disobedience of the law”, the 9th Circuit held that it lacked jurisdiction to review the decision. U.S. v. Chinske, 978 F.2d 557 (9th Cir. 1992).
9th Circuit says refusal to depart must be a clear exercise of discretion, or sentence will be reversed. (860) The district court erroneously stated that it could not depart below the level recommended by the government for substantial assistance. The government argued that reversal was not required because the district court would have given the same sentence regardless of its erroneous legal ruling. The 9th Circuit rejected the argument, even though the district court also stated that the government’s suggested sentence was “not inappropriate.” This statement did not clearly indicate that the district court would not have departed further if it had believed it could. At best, the remarks were ambiguous. The case was remanded for re-sentencing with instructions for the district court to exercise its discretion in sentencing anywhere below the statutory maximum. U.S. v. Udo, 963 F.2d 1318 (9th Cir. 1992).
9th Circuit says judge knew he could depart. (860) When defense counsel first asked for a departure, the judge said, “I’m not inclined to go below 240 months which is . . . barely above the minimum guideline range . . . . The guideline is 235-293. I mean, would you have me depart below that?” When defense counsel answered yes because he believed there was entrapment, the judge stated that there was no entrapment because the defendants were involved in an ongoing business. The court also considered and rejected counsel’s plea to reduce the sentence because the defendant’s criminal history was overstated. There was no indication that the judge thought he was powerless to depart. His refusal to do so was unreviewable. U.S. v. Reyes-Alvarado, 963 F.2d 1184 (9th Cir. 1992).
9th Circuit finds that court exercised its discretion in refusing to depart downward. (860) The 9th Circuit found “no indication in the record that the sentencing court’s refusal to depart downward was anything but discretionary.” The court entertained briefs and oral arguments on the appropriateness of a downward departure, and concluded that under the circumstances a downward departure was “not warranted.” Accordingly the 9th Circuit held that since the district court was exercising its discretion, “we have no jurisdiction over this issue.” U.S. v. Robinson, 958 F.2d 268 (9th Cir. 1992), abrogation on other grounds recognized by U.S. v. Newman, 203 F.3d 700 (9th Cir. 2000).
9th Circuit finds statements demonstrated that court’s refusal to depart downward was discretionary. (860) The district judge stated at the sentencing hearing that he was “not inclined to depart” and that, even though the sentence was harsh and he sympathized with the defendant, there was “no basis for departure.” The 9th Circuit ruled that the court’s decision not to depart “did not appear to rest on the judge’s belief that departure was prevented as a matter of law.” Therefore the court declined to review the decision. U.S. v. Belden, 957 F.2d 671 (9th Cir. 1992).
9th Circuit says that judge did not mistakenly believe that she lacked authority to depart. (860) At sentencing, the district judge stated that the “downward departure requested does not seem to me to have a basis.” Reviewing this comment in context, the 9th Circuit held that the judge’s comments “demonstrate that the district judge set the sentence after assessing the facts of the case and [defendant’s] culpability, and not because she mistakenly believed that she lacked the authority to depart.” Accordingly the decision not to depart was not reviewable on appeal. U.S. v. Koenig, 952 F.2d 267 (9th Cir. 1991).
9th Circuit refuses to review discretionary decision not to depart downward. (860) The 9th Circuit reiterated that the district court’s discretionary decision not to depart downward from the guidelines is not subject to review on appeal. U.S. v. Cipollone, 951 F.2d 1057 (9th Cir. 1991).
9th Circuit reverses sentence where district court did not realize it had discretion to depart. (860) The general rule is that district court’s discretionary decision not to depart downward is not subject to review on appeal. But the 9th Circuit ruled that “it is crucial that the district court exercise its discretion.” If the court believes it has no discretion, “there is an error of law which we are able to review.” In this case it was evident from the statements of the court that it believed it had no discretion and so exercised none. The court noted that the guidelines “are not a straight jacket for district judges. They do give discretion to depart.” This case was remanded for resentencing. U.S. v. Cook, 938 F.2d 149 (9th Cir. 1991).
9th Circuit reverses sentence where district court did not realize it had discretion to depart. (860) The general rule is that district court’s discretionary decision not to depart downward is not subject to review on appeal. But the 9th Circuit ruled that “it is crucial that the district court exercise its discretion.” If the court believes it has no discretion, “there is an error of law which we are able to review.” In this case it was evident from the statements of the court that it believed it had no discretion and so exercised none. The court noted that the guidelines “are not a straight jacket for district judges. They do give discretion to depart.” This case was remanded for resentencing. U.S. v. Cook, 938 F.2d 149 (9th Cir. 1991).
9th Circuit refuses to review refusal to depart downward. (860) Defendant asserted that the district court should have departed downward pursuant to § 5K2.10 of the guidelines because of the victim’s wrongful conduct in provoking him. The 9th Circuit held that it had no jurisdiction to review this claim. U.S. v. Mun, 928 F.2d 323 (9th Cir. 1991).
9th Circuit says court need not affirmatively acknowledge that it has authority to depart downward. (860) Defendant argued that he should be allowed to appeal the district court’s failure to depart downward, because the record was silent on whether the court recognized that it had authority to depart below the guideline range. The 9th Circuit rejected the argument, holding that the court’s silence was not sufficient to indicate that it believed it lacked power to depart. The court held that “the district court has no obligation affirmatively to state that it has authority to depart when it sentences within the guideline range.” U.S. v. Garcia-Garcia, 927 F.2d 489 (9th Cir. 1991).
9th Circuit says court need not affirmatively acknowledge that it has authority to depart downward. (860) Defendant argued that he should be allowed to appeal the district court’s failure to depart downward, because the record was silent on whether the court recognized that it had authority to depart below the guideline range. The 9th Circuit rejected the argument, holding that the court’s silence was not sufficient to indicate that it believed it lacked power to depart. The court held that “the district court has no obligation affirmatively to state that it has authority to depart when it sentences within the guideline range.” U.S. v. Garcia-Garcia, 927 F.2d 489 (9th Cir. 1991).
9th Circuit holds that extent of downward departure is not reviewable. (860) The 9th Circuit held that in so far as the defendant sought review of the extent of the downward departure or the court’s failure to depart below the statutory minimum, “these issues are not reviewable.” U.S. v. Fuentes, 925 F.2d 1191 (9th Cir. 1991).
9th Circuit holds that extent of downward departure is not reviewable on appeal. (860) Relying on prior circuit authority, the 9th Circuit held that the extent to which a district court chooses to exercise its discretion in fixing a downward departure is not reviewable on appeal. U.S. v. Dickey, 924 F.2d 836 (9th Cir. 1991).
9th Circuit finds that judge exercised discretion in refusing to depart downward. (860) Reaffirming its ruling that a district court’s discretionary decision not to depart downward from the guidelines is not subject to review on appeal, the 9th Circuit held that the district judge’s ruling here was discretionary and therefore there was no jurisdiction to review his failure to depart downward. U.S. v. Sanchez, 914 F.2d 1355 (9th Cir. 1990).
9th Circuit rejects defendant’s appeal challenging extent of departure downward. (860) Defendant claimed that sentencing judge erred in not granting a greater downward departure from the sentencing guidelines. Judges Browning, Wallace, and Fletcher noted that defendant did not assert that the sentence imposed was in violation of law, involved an incorrect application of the guidelines, exceeded the guideline range, or was imposed for an offense for which there is no guideline and was “plainly unreasonable.” Thus the court concluded that it had no jurisdiction under 18 U.S.C. § 3742(a) to review the extent of the departure. U.S. v. Martinez, 905 F.2d 251 (9th Cir. 1990).
9th Circuit holds it has no jurisdiction to review extent of downward departure. (860) The defendant argued that the downward departure to forty months was insufficient because he was functionally illiterate, unsophisticated, and was victimized by his coconspirators. In U.S. v. Morales, 898 F.2d 99, 103 (9th Cir. 1990), the 9th Circuit held that a district court’s discretionary decision not to depart downward from the guidelines is not subject to review on appeal. Judges Boochever, Goodwin and Tang held that “by the same reasoning we may not review a defendant’s appeal from the district court’s discretion in fixing the extent of a downward departure.” The court held that it lacked jurisdiction because 18 U.S.C. § 3742(a) does not authorize such an appeal. The court noted that its ruling was in accord with decisions from the 1st, 8th and 11th Circuits. U.S. v. Vizcarra-Angulo, 904 F.2d 22 (9th Cir. 1990).
9th Circuit joins other circuits in holding that refusal to depart downward from the guidelines is not subject to review on appeal. (860) Agreeing with seven other circuits, the 9th Circuit held that 18 U.S.C. § 3742(a) “precludes appellate review of a district court’s discretionary refusal to depart downward from the guidelines.” The court noted that “Congress’ election to limit the review of a trial court’s sentencing decisions is fully consistent with the prior judicial practice of generally not reviewing sentences which fall within statutory limits, absent constitutional concerns.” U.S. v. Morales, 898 F.2d 99 (9th Cir. 1990).
9th Circuit reiterates ruling that discretionary refusal to depart downward is not appealable. (860) The district court concluded “I do not find that I have the authority [to depart] in this case, nor do I find facts which would lead me to believe that I should depart.” The 9th Circuit held that the district judge clearly indicated that “even if he had the authority to depart, there were no facts to justify departing downward.” This finding “constitutes a discretionary refusal to depart,” and “we are without jurisdiction to review it.” U.S. v. Williams, 898 F.2d 1400 (9th Cir. 1990).
10th Circuit cannot review discretionary refusal to depart. (860) Defendant was convicted of assaulting and kidnapping his ex-wife. He argued that the district court erred by refusing to grant him a downward departure under § 5K2.10 based on his ex-wife’s role in perpetuating a volatile and co-dependant relationship with defendant. The Tenth Circuit held that it lacked jurisdiction to review the matter since the district court made a discretionary decision not to depart on the ground that the specific circumstances did not warrant a departure. The court thoroughly considered defendant’s argument and rejected it. Defendant did not point to any statement by the judge that clearly and unambiguously indicated that the judge believed he did not have the authority to depart if he wished. U.S. v. Wooten, 377 F.3d 1134 (10th Cir. 2004).
10th Circuit holds that ambiguous statement was not sufficient to show court was unaware of discretion to depart. (860) A court of appeals lacks jurisdiction to review a district court’s discretionary refusal to depart from the sentencing guidelines. To avoid this jurisdictional hurdle, defendant argued that the district court failed to even consider his request for a departure under § 5K2.0, and thus, the only fair conclusion was that it believed it did not have discretion to consider the departure. The Tenth Circuit disagreed. In rejecting defendant’s request for a departure, the court stated that: “I realize that [counsel] makes an argument certainly that this matter is not a forbidden area for purposes of a departure. And if the Court was to consider it, it would be an area that frankly is not, as near as I can tell, mentioned specifically within the guidelines, but it is mentioned by statute …. In consequence, I think [defendant] must lose or not prevail on his contentions in this case.” Thus, the court clearly considered defendant’s departure request. The court’s explanation for its refusal to depart was ambiguous as to exactly what the court believed regarding its authority to depart. However, because the court did not unambiguously state that it believed it lacked the authority to downwardly depart, the panel declined to review the court’s decision not to depart. U.S. v. Jeppeson, 333 F.3d 1180 (10th Cir. 2003).
10th Circuit holds that court did not have jurisdiction to review refusal to depart downward. (860) In denying defendant’s request for a downward departure, the district court said “I think [defendant’s] conviction is sufficient to satisfy the heartland requirement of the guidelines, and the other information that came out during the course of the trial does not have any bearing on moving [defendant] out of the heartland.” The district court clearly realized it had the authority to depart downward, but decided defendant’s case did not warrant it. In that situation, the Tenth Circuit held that it lacked jurisdiction to entertain his appeal from that refusal. U.S. v. Alcorn, 329 F.3d 759 (10th Cir. 2003).
10th Circuit refuses to assume court was unaware of authority to depart. (860) In denying defendant’s request for a downward departure, the court explained that “in my discretion, I declined to grant a motion for downward departure under … 5K2.0.” Defendant argued that this statement was ambiguous regarding whether the court recognized its authority to depart. The Tenth Circuit refused to assume that the court was unaware of its authority to depart. “We are no longer willing to assume that judge’s ambiguous language means that the judge erroneously concluded that he or she lacked authority to downward depart.” Even assuming the judge’s comments were ambiguous, which they did not appear to be, an appellate court will presume that the court was aware of its authority to depart absent unambiguous language to the contrary. U.S. v. Heredia-Cruz, 328 F.3d 1283 (10th Cir. 2003).
10th Circuit has no discretion to review refusal to depart where court recognized discretion to depart. (860) Defendant challenged the district court’s refusal to depart downward under § 5K2.13 on the basis of diminished mental capacity. However, the district court acknowledged its authority to depart under § 5K2.13, applied § 5K2.13 to the facts of defendant’s case, and simply declined, on those facts, to make the requested departure. Because the district court recognized its authority to depart, the Tenth Circuit held that it lacked jurisdiction to review the decision not to grant the requested departure. U.S. v. Brown, 316 F.3d 1151 (10th Cir. 2003).
10th Circuit has no jurisdiction to review refusal to depart based on defendant’s particular circumstances. (860) The court stated that “based on the reasons given, the court does not have the authority to depart and therefore, the court finds that the defendant’s motion for downward departure is denied.” An appellate court has jurisdiction to review a refusal to depart only in “the very rare circumstances” that the court states that it does not have authority to depart “for the entire class of circumstances proffered by the defendant.” An appellate court has no jurisdiction “when a sentencing court concludes under the defendant’s particular circumstances that it does not have the authority to depart.” Here, the district court discussed each of defendant’s eight reasons for departure and rejected them all. The court concluded that this specific case was not outside the heartland of typical cases, and therefore the guidelines did not grant authority to depart. Because the court’s decision resulted from consideration of defendant’s particular circumstances, the Tenth Circuit had no jurisdiction to review the decision. U.S. v. Mendez-Zamora, 296 F.3d 1013 (10th Cir. 2002).
10th Circuit remands where court failed to consider requested ground for departure. (860) In his objection to the PSR, defendant argued that he should have received a downward departure under § 5K2.10 because the victim’s wrongful conduct significantly contributed to provoking his offense. The government conceded at oral argument that this issue was properly raised and preserved for the district court. It was undisputed that the district court did not rule on this motion. The Tenth Circuit ruled that defendant was entitled to have the district court consider in the first instance whether § 5K2.10 applied to his case. Therefore, the appellate court remanded for consideration of the applicability of § 5K2.10. U.S. v. Walters, 269 F.3d 1207 (10th Cir. 2001).
10th Circuit has jurisdiction to review court’s belief that it lacked authority to depart. (860) After defendant pled guilty to second-degree murder, the government moved for an upward departure on the grounds that (1) the murder was premeditated; (2) the murder was committed in order to facilitate a robbery, and (3) defendant’s conduct was unusually heinous, cruel and brutal. The district court denied the motion, and the government appealed. The Tenth Circuit held that it could review the refusal to depart because the court’s ruling was based on the legal conclusion that it lacked the authority to depart. The judge’s statement at the sentencing hearing indicated that he believed that the plea agreement was inconsistent with the government’s request for an upward departure. The judge’s remarks indicated a belief that, as heinous as the offense might be, he possessed no authority to depart on ground indicating that the crime was actually a first-degree murder. Moreover, the judge stated that an upward departure under § 5K2.8 based on extreme conduct required the victim to feel the extreme conduct, and that he could not consider what defendant did to the victim after the victim was dead. U.S. v. Hanson, 264 F.3d 988 (10th Cir. 2001).
10th Circuit will not review where judge recognized authority to depart. (860) The district court recognized his authority to depart downward under § 5K1.1, but suggested he would only consider such a departure if defendant had provided “useful information” that aided in the prosecution of the leaders of the motorcycle gang, not the lower level people that were convicted in state court. Because the district judge recognized his ability to depart downward, the Tenth Circuit refused to review the decision not to depart. U.S. v. Busekros, 264 F.3d 1158 (10th Cir. 2001).
10th Circuit upholds refusal to depart based on obsessive-compulsive disorder. (860) Defendant broke into a house carrying a loaded .22 caliber handgun with an attached silencer. He pled guilty to possessing an unregistered firearm, the homemade silencer. He moved for a downward departure, claiming that the silencer was a symptom of the “over-preparation” he was compelled to perform because he suffered from an obsessive-compulsive disorder. The Tenth Circuit affirmed the refusal to depart. The district court constructed defendant’s motion relating to his obsessive-compulsive disorder as a motion based on diminished capacity under § 5K2.13. However, § 5K2.13 could not be applied here because defendant’s crime involved “actual violence or a serious threat of violence.” The court also did not believe that the condition caused defendant to bring the silencer, instead believing that defendant’s act of bringing the silencer was a reaction to an earlier burglary. This was not a legal conclusion that the court had no discretion to depart, but a factual conclusion that a departure was not warranted under the circumstances at issue. An appellate court lacks jurisdiction to review a sentencing court’s refusal to depart when the court was aware that it had the authority to depart but declines to exercise that authority. U.S. v. Constantine, 263 F.3d 1122 (10th Cir. 2001).
10th Circuit holds that statement indicated court was aware of authority to depart. (860) In denying defendant’s request for a departure, the district court said the following: “Its really a long record and pretty serious. On that account, there’s no way I could lawfully depart downward in this case. The Tenth Circuit opinions plain just don’t permit it, and I don’t think there’s any — any way that would hold up by which I could….” The Tenth Circuit ruled that it lacked jurisdiction to review defendant’s claim. A court of appeal cannot exercise jurisdiction to review a sentencing court’s refusal to depart except in the very rare circumstance that the court states that it does not have any authority to depart from the entire class of circumstances proffered by the defendant. This exception does not apply when a sentencing court concludes under the defendant’s particular circumstances that it does not have the authority to depart. U.S. v. Castillo, 140 F.3d 874 (10th Cir. 1998). The district court’s statement that it lacks authority to grant the requested departure must be unambiguous. In Castillo, the court held the following statement unreviewable: If there’s any way that the folks up above can say I can depart, I will depart, but I don’t see how I can do it.” There was no principled way to distinguish the statement in Castillo from the one at issue here. In addition, the judge’s reference to defendant’s long record implied that the refusal to depart was based on his particular circumstances. U.S. v. Browning, 252 F.3d 1153 (10th Cir. 2001).
10th Circuit rules that court was aware of authority to depart. (860) Defendant argued that the district court erred in refusing to grant her a downward departure based on the fact that her money laundering offenses, which resulted in a higher offense level than her other crimes, were incidental to her distribution of pseudoephedrine. At sentencing, the judge stated that he was “troubled by the length of the sentence that is mandated, but … I am constrained by the law and I just don’t feel a downward departure is appropriate in this case.” From these statements, the Tenth Circuit concluded that the judge understood that he had discretion to depart, but determined that departure was not warranted in this instance. The fact that he considered the guideline sentence to be lengthy did not demonstrate that he believed he could not depart from that sentence. Because the trial court did not misunderstand its discretion to depart, the appellate court lacked jurisdiction to review the court’s refusal to depart. U.S. v. Saffo, 227 F.3d 1260 (10th Cir. 2000).
10th Circuit cannot review departure even where court did not explicitly rule on motion. (860) The district court stated that it took defendant’s circumstances into consideration when it sentenced her, but did not explicitly rule on her motion for a downward departure. Nonetheless, because the district court did not indicate that it lacked authority to depart from the sentencing guideline range, the Tenth Circuit ruled that it lacked jurisdiction to review the district court’s decision not to depart. U.S. v. Mounkes, 204 F.3d 1024 (10th Cir. 2000).
10th Circuit applies first-degree murder guideline where victim accidentally killed during robbery. (860) During defendant’s robbery of a restaurant, his handgun accidentally discharged, killing a restaurant employee. He argued that he should not be sentenced under § 2A1.1, the first-degree murder guideline, because the employee was killed accidentally and without “malice aforethought.” The Tenth Circuit held that the district court correctly applied § 2A1.1. The commission of the robbery constituted the “malice aforethought” required for § 1111(a) felony murder. The appellate court had no jurisdiction to review the district court’s refusal to depart under note 1 to § 2A1.1. The transcript of the sentencing hearing did not indicate that the district court misunderstood its authority to depart. Rather, the district court stated, correctly, ‘that the accidental nature of the killing [did not] somehow cancel[] the felony murder rule.” U.S. v. Pearson, 203 F.3d 1243 (10th Cir. 2000).
10th Circuit rules court exercised discretion in rejecting entrapment departure. (860) Defendant argued that the district court misunderstood its ability to depart based on his entrapment defense. The Tenth Circuit found that the court’s decision not to depart was based on a proper assessment in the record rather than on a misapprehension of its authority. The judge found that defendant was responsible for the two kilograms for which he was sentenced, rejecting the government’s argument that he should have been sentenced for five kilograms. The judge very clearly found that there was no sentencing entrapment with regard to the two kilogram amount, and therefore it could not sentence defendant below the mandatory minimum sentence required by 21 U.S.C. § 841(b)(1)(B). U.S. v. Diaz, 189 F.3d 1239 (10th Cir. 1999).
10th Circuit upholds consideration of defendant’s role in determining extent of Rule 35(b) departure. (860) Defendant’s original offense level was 31, which resulted in a guideline range of 108-135 months. The government later filed a Rule 35(b) motion to reduce defendant’s sentence. The motion recommended a two-level reduction in offense level to 29 and a sentence of 87 months, based on a guideline range of 87-108 months. The district court granted the motion, but only reduced defendant’s sentence to 97 months, saying that this partial reduction was appropriate given her “pivotal role” in the offense. Defendant claimed that her sentence was imposed in violation of law because the district court considered a factor other than her assistance to the government in determining her sentence. The Tenth Circuit found no error in the court’s consideration of defendant’s role in the offense. The only court to address whether factors other than substantial assistance may be considered in determining the size of a Rule 35(b) sentence reduction rejected defendant’s exclusivity argument. See U.S. v. Manella, 86 F.3d 201 (11th Cir. 1996). Because defendant’s sentence was within the guideline range, the sentence was not otherwise reviewable. U.S. v. Neary, 183 F.3d 1196 (10th Cir. 1999).
10th Circuit has no discretion to review extent of substantial assistance departure. (860) Defendant argued that the district court abused its discretion when it chose to depart downward only two levels for substantial assistance. The Tenth Circuit held that it had no jurisdiction to entertain this challenge. It is well established that appellate courts lack jurisdiction to review, at the urging of a defendant, the extent of a downward departure. The statute that governs appellate review of sentences affords no relief to a party who complains the sentencing court’s deviation from the guidelines should have been greater. In addition, the court lacked authority to review defendant’s claim that the court erred in refusing to depart for his extraordinary acceptance of responsibility. Courts cannot review a sentencing court’s refusal to depart unless the sentencing court interpreted the guidelines to deprive it of authority to do so. “[W]e treat ambiguous statements made by the district judges as though the judge was aware of his or her legal authority to depart but chose instead, in an exercise of discretion, not to depart.” U.S. v. Fortier, 180 F.3d 1217 (10th Cir. 1999).
10th Circuit rules court did not refuse to consider bombing conspirator’s personal characteristics. (860) Defendant conspired with Timothy McVeigh in the planning and subsequent bombing of the Alfred P. Murrah Building in Oklahoma City. The district court imposed a life sentence. Defendant argued that the district court failed to give him individual consideration during sentencing. The judge stated, in part, that the life sentence was based upon its view “that anyone, no matter who that person might be, or what his background might be, who participates in a crime of this magnitude, has forfeited the freedoms that this government is designed to protect and defend.” The Tenth Circuit found no error. The court’s comments simply represented a view that the crime of conviction was so horrible that even the most innocent personal background would not mitigate in favor of a sentence less than life imprisonment. U.S. v. Nichols, 169 F.3d 1255 (10th Cir. 1999).
10th Circuit reviews refusal to depart where court specifically states factor did not support departure. (860) Before sentencing, defendant moved for a departure based on a combination of factors, including his exceptional remorse. The district court denied the motion, specifically ruling that it did not have the discretion to consider remorse as a factor to support a departure. The Tenth Circuit held that it had jurisdiction to review the decision. A sentencing court’s refusal to grant a downward departure is reviewable when the refusal is based on the court’s conclusion that it lacks discretion to make the departure. U.S. v. Fagan, 162 F.3d 1280 (10th Cir. 1998).
10th Circuit upholds refusal to depart for pre-indictment delay. (860) In June 1993, defendant was arrested in possession of a gun and several rounds of ammunition. However, he was not charged with being a felon in possession of a firearm until February 1996. Defendant moved for a downward departure based on the excessive pre-indictment delay, but the district court refused to depart. Defendant argued the district court applied the wrong test in deciding whether to depart. The Tenth Circuit affirmed the court’s refusal to depart for pre-indictment delay. The district court said it could only grant defendant’s departure motion if defendant proved the government intentionally delayed to gain a tactical advantage and that defendant suffered prejudice as a result of the delay. Defendant did not prove this. Even if this was not the proper test, defendant would not be entitled to a downward departure. The delay defendant suffered was “neither extreme nor implicitly sinister,” but rather the type of delay that is ordinary in “the fabric of criminal proceedings.” Defendant did not demonstrate that the court misunderstood its authority to depart. The decision not to depart was therefore not reviewable. U.S. v. Brye, 146 F.3d 1207 (10th Cir. 1998).
10th Circuit clarifies ability to review refusal to depart. (860) Defendant was convicted of sexually abusing his minor daughters. He requested a downward departure for several reasons, including the victims’ wishes that he return to the family, his family responsibilities, and his stable employment record while enduring the hardships of life on a Navajo Reservation. The Tenth Circuit held that it lacked jurisdiction to review the refusal to depart. Reviewing courts faced with a court’s refusal to depart downward need not first examine the merits of defendant’s circumstances before concluding that it lacks jurisdiction. Courts of appeals cannot exercise jurisdiction to review a refusal to depart except in the very rare circumstance where the district court states that it does not have any authority to depart from the guidelines for the entire class of circumstances proffered by the defendant. This exception does not apply when a sentencing court concludes that under the defendant’s particular circumstances it does not have authority to depart. Here, although the court stated that it could not depart, it was clear that the court knew it had authority to depart if the facts of the case had supported such a departure. They did not. U.S. v. Castillo, 140 F.3d 874 (10th Cir. 1998).
10th Circuit refuses to review where court did not state it lacked authority to depart. (860) Defendant was convicted of assaulting a federal officer. He appealed the court’s refusal to depart downward based on the circumstances surrounding the assault and his resulting ear injury. In rejecting the departure, the court stated that the grounds on which defendant sought a departure were not part of the relevant conduct. The assault that caused defendant’s hearing loss involved conduct separate in time, distinct in nature and distinct as to the parties. The Tenth Circuit refused to review the district court’s failure to depart, since the court did not express a belief that it lacked authority to depart. Unless the judge’s language unambiguously states that the judge does not believe he had authority to depart downward, an appellate court will not review the matter. U.S. v. Segien, 114 F.3d 1014 (10th Cir. 1997), abrogation on other grounds recognized by U.S. v. Hathaway, 318 F.3d 1001 (10th Cir. 2003).
10th Circuit rules career offender status did not over-represent criminal history. (860) Defendant was sentenced as a career offender based on two prior escape convictions. He argued that career offender status overstated the seriousness of his criminal history since the escapes were non-violent “walk-aways” from unsecured correctional facilities. The Tenth Circuit affirmed the district court’s refusal to depart downward, agreeing that defendant’s career offender status did not overstate the seriousness of his criminal history. The district court found defendant had engaged in a life of crime, and that his incarceration was necessary to protect the public from further crimes. Given this, the court properly found it had no discretion to depart downward. U.S. v. Mitchell, 113 F.3d 1528 (10th Cir. 1997).
10th Circuit refuses to review failure to depart. (860) Defendant argued that the district court should have departed downward because the guidelines over-represented the gravity of his past crimes. The Tenth Circuit held that such a departure is discretionary and the judge’s exercise of discretion not to depart cannot be appealed. U.S. v. Jones, 80 F.3d 436 (10th Cir. 1996).
10th Circuit holds that judge’s silence did not prove ignorance of ability to depart. (860) Defendant moved for a downward departure, but the court never made an explicit ruling on the motion. The Tenth Circuit held that the judge’s silence did not show that the judge was ignorant of his discretion to depart downward. The mere failure to mention his discretion to depart did not imply a lack of understanding of that discretion. District courts have become more experienced in applying the guidelines and more familiar with their authority to depart. Therefore, unless the judge’s language unambiguously states that he does not believe he has the authority to depart downward, an appellate court will not review the decision. Here, the judge sentenced defendant immediately after hearing extensive oral argument on the downward departure motion. Thus, the judge must have been aware of his discretionary authority and the decision not to depart was not reviewable. U.S. v. Rowen, 73 F.3d 1061 (10th Cir. 1996).
10th Circuit refuses to review where court exercised discretion not to depart downward. (860) Defendant argued that the district court erred in refusing to depart downward based on “extraordinary circumstances,” including defendant’s employment record, the fact that he had no prior convictions, and that he and his common-law wife had an infant child. The Tenth Circuit refused to review the issue, finding the district judge recognized that he had discretionary power to make a downward departure, but stated that a departure was not appropriate in this case. An appellate court lacks jurisdiction to review such a discretionary decision. U.S. v. Sloan, 65 F.3d 152 (10th Cir. 1995).
10th Circuit has no jurisdiction to review discretionary refusal to depart. (860) Defendant argued that his criminal history was overrepresented by two prior DWI convictions and that he should have received a downward departure. The Tenth Circuit refused to review the matter. As long as a district court understands its authority to depart from the guidelines, an appellate court has no jurisdiction to review the court’s discretionary refusal to grant a departure. U.S. v. Contreras, 59 F.3d 1038 (10th Cir. 1995).
10th Circuit finds court was aware of ability to depart for family situation. (860) Defendant argued that the trial court erred in denying her request for a downward departure under § 5H1.6 due to her family situation. The Tenth Circuit held that it lacked jurisdiction to review the matter since the district court was aware of its discretion to depart, but simply chose not to exercise it. The court noted defendant’s case did not fit the criteria for a family circumstances departure since her circumstances were not extraordinary. U.S. v. Williamson, 53 F.3d 1500 (10th Cir. 1995).
10th Circuit finds judge was unhappy with guidelines but understood ability to depart. (860) Defendant illegally possessed and transferred a machine gun. He argued that the district court mistakenly believed it lacked discretion under § 5K2.11 to depart downward. The 10th Circuit disagreed, finding that ambiguities in the record stemmed from the judge’s unhappiness with the guidelines, and not from a misunderstanding of his ability to depart. The full transcript revealed that the court fully understood the nature of its discretion and gave full consideration to defendant’s arguments before ultimately rejecting them. The language “I’m required” and “I have no choice” indicated the court’s general dissatisfaction with the sentencing guidelines rather than a misapprehension of them. U.S. v. Stewart, 37 F.3d 1449 (10th Cir. 1994).
10th Circuit rules that judge was aware of ability to depart. (860) The district court denied defendant’s request for a downward departure based on the government’s objections. It noted that defendant’s continued drug use while awaiting sentencing recommended against a downward departure. The 10th Circuit refused to review the court’s failure to depart. The judge exercised his discretion not to depart, and thus, the appellate court lacked jurisdiction. Moreover, even if the judge’s language was ambiguous, the court was “no longer willing to assume” that a judge’s ambiguous language meant that the judge erroneously concluded that he lacked authority to depart downward. Unless the judge’s language unambiguously states that the judge does not believe he has authority to depart downward, the appellate court will not review the decision. U.S. v. Rodriguez, 30 F.3d 1318 (10th Cir. 1994).
10th Circuit concludes court was aware of its authority to depart downward. (860) The district court rejected defendant’s request for a downward departure, stating “I did not downward depart, because I don’t believe the record would justify the Court in doing that in this case, but you have been given the minimum sentence that this Court feels is appropriate and proper in this case.” The 10th Circuit concluded that the district court was aware of its authority to depart downward, and thus it had no jurisdiction to review the refusal to depart. U.S. v. Sanders, 18 F.3d 1488 (10th Cir. 1994).
10th Circuit lacks jurisdiction to review failure to make substantial assistance departure. (860) Although the government, pursuant to defendant’s plea agreement, moved for a substantial assistance departure, the district court failed to make the departure. The 10th Circuit held that it lacked jurisdiction to review the discretionary refusal to grant the departure, even though the government made a section 5K1.1 motion. Defendant could not evade this jurisdictional bar by characterizing the refusal to depart as a misapplication of the guidelines rather than as an exercise of discretion. U.S. v. Fitzherbert, 13 F.3d 340 (10th Cir. 1993).
10th Circuit refuses to review refusal to depart. (860) Defendant, convicted of being a felon in possession of a firearm, argued that he deserved a downward departure because the firearm was not used to commit any crime and was not a danger to any person. The 10th Circuit held that it lacked discretion to review the district court’s failure to depart downward. Defendant did not argue that the sentence was imposed in violation of law, or was a result of an incorrect application of the guidelines. or was not within the guideline range. U.S. v. Lloyd, 10 F.3d 1197 (6th Cir. 1993).
10th Circuit refuses to review failure to depart for outrageous government conduct. (860) Defendant argued that the outrageous conduct of the government agents and the totality of the circumstances surrounding his arrest required the district court to depart downward under section 5K2.0. The 10th Circuit noted that it had no jurisdiction to review the district court’s discretionary refusal to depart downward from the sentencing guidelines. Moreover, it was clear from the video tapes that defendant was not purchasing crack cocaine for his own use, but to distribute it. Finally, although defendant told the court that he believed that he was the victim of vindictive prosecution, he declined the invitation to assert this as a defense. U.S. v. Diggs, 8 F.3d 1529 (10th Cir. 1993).
10th Circuit expresses unwillingness to treat ambiguous rulings as a failure to recognize ability to depart. (860) The district court rejected defendant’s request for a downward departure, stating in part that “I am not going to find that there are grounds in this case for a downward departure.” The 10th Circuit held that the phrase “not going to” indicated that the court was aware of its ability to depart, but that the court rejected this option. The use of the word “find” indicted that the basis for the rejection was the court’s dissatisfaction with the reasons proffered to support a downward departure, rather than a belief that the proffered reasons did not as a legal matter permit the court the discretion to depart. The appellate court noted that since district courts have become more experienced with the guidelines, it was less inclined than in the past to treat ambiguous rulings as a failure to recognize discretion to depart. U.S. v. Barrera-Barron, 996 F.2d 244 (10th Cir. 1993).
10th Circuit has no jurisdiction to review refusal to depart based on age and physical condition. (860) Defendant argued that the district court erred in refusing to depart downward based on defendant’s age (52 years) and poor health. The 10th Circuit relied on circuit precedent to conclude that it lacked jurisdiction to review the district court’s discretionary refusal to depart downward. U.S. v. Holsey, 995 F.2d 960 (10th Cir. 1993).
10th Circuit refuses to review failure to depart downward for coercion. (860) Defendant contended that the district court erred in refusing to grant a downward departure based on coercion or duress. The 10th Circuit held that it was without jurisdiction to consider the district court’s discretionary refusal to depart downward. U.S. v. Merchant, 992 F.2d 1091 (10th Cir. 1993).
10th Circuit finds no jurisdiction to review refusal to depart downward. (860) The 10th Circuit ruled that it had no jurisdiction to hear defendant’s appeal of the trial court’s discretionary refusal to depart downward from the guidelines. U.S. v. Youngpeter, 986 F.2d 349 (10th Cir. 1993).
10th Circuit reaffirms that it lacks jurisdiction to consider extent of downward departure. (860) Although defendant received a substantial downward criminal history departure, he contended on appeal that his base offense level should have similarly been reduced. The 10th Circuit held that it lacked jurisdiction to consider the issue. Neither a failure to depart downward, nor the extent of a downward departure when one occurs, confers jurisdiction on the appellate court. U.S. v. McHenry, 968 F.2d 1047 (10th Cir. 1992).
10th Circuit refuses to review refusal to depart based on defendant’s diminished capacity. (860) The 10th Circuit refused to review defendant’s claim that the district court erred in refusing to depart downward based upon his diminished mental capacity. The language of section 5K2.13 is discretionary, not mandatory. When a district court has discretion to depart downward, and explicitly declines to exercise that jurisdiction, 18 U.S.C. section 3742 does not grant jurisdiction to review that decision. U.S. v. Eagan, 965 F.2d 887 (10th Cir. 1992).
10th Circuit refuses to review failure to depart downward. (860) The 10th Circuit refused to review the district court’s refusal to depart downward, since an appellate court does not have jurisdiction to review such a discretionary decision. U.S. v. Gines, 964 F.2d 972 (10th Cir. 1992).
10th Circuit refuses to review district court’s failure to grant government’s section 5K1.1 motion. (860) Defendant claimed that the district court abused its discretion in denying the government’s motion under guideline 5K1.1 for a downward departure. The 10th Circuit ruled that it lacked jurisdiction to consider this claim. The language in guideline section 5K1.1 clearly states that the district court’s decision to depart is discretionary. U.S. v. Munoz, 946 F.2d 729 (10th Cir. 1991).
10th Circuit rules it lacks jurisdiction to review discretionary refusal to depart downward. (860) Previously, the 10th Circuit remanded the case to the district court to clarify the reason for its refusal to depart downward. On remand the district court stated that it exercised its discretion in denying a downward departure, despite authority for such departure. The 10th Circuit held that in light of this statement, it lacked jurisdiction to review that discretionary decision. U.S. v. Fox, 943 F.2d 1218 (10th Cir. 1991).
10th Circuit finds district court articulated sufficient reasons to deny downward departure. (860) In U.S. v. Jefferson, 925 F.2d 1242 (10th Cir. 1991), the 10th Circuit remanded the case for the district court to clarify why it concluded it lacked discretion to sentence defendants below their applicable guideline ranges. On remand, the district court explained that although if felt that the guideline sentence was unduly harsh, there were no grounds available that would justify the exercise of discretion for a downward departure for either defendant. The 10th Circuit found that the district court properly applied the guidelines and properly determined that there was no basis for a downward departure. U.S. v. Jefferson, 925 F.2d 1242 (10th Cir. 1991).
10th Circuit remands where judge stated he had no discretion to depart downward. (860) The 10th Circuit found that the trial judge committed plain error when he sentenced defendants under the expressed belief that he had no discretion to consider a downward departure under the guidelines. The judge stated that “I have spoken against the guidelines, because I believe that they are harsh. I believe that they should give the sentencing judge a discretion, and these guidelines don’t . . . I have no discretion in the matter.” U.S. v. Jefferson, 925 F.2d 1242 (10th Cir. 1991).
10th Circuit reaffirms that it has no jurisdiction to review refusal to depart downward. (860) Defendant claimed the district court abused its discretion by not taking into account his possible deportation and departing downward from the guidelines. The 10th Circuit dismissed for lack of jurisdiction, reaffirming that it could not review a district court’s refusal to depart downward. The district court clearly believed it had the authority to depart downward but chose not to because the facts did not warrant a departure. The fact that defendant’s drug conviction might result in his deportation did not give the appellate court jurisdiction. Moreover, Congress has specifically stated that the courts should not recommend to the Attorney General that an alien convicted of a controlled substance offense not be deported. A downward departure for the purpose of avoiding possible deportation would be an attempt to circumvent a Congressional prohibition. U.S. v. Soto, 918 F.2d 882 (10th Cir. 1990).
10th Circuit refuses to review district court’s failure to make downward departure. (860) Defendant argued that it was an abuse of discretion for the trial court to deny a downward departure. The 10th Circuit stated that the issue was not appealable, and that it lacked jurisdiction to consider the issue. U.S. v. Adams, 914 F.2d 1404 (10th Cir. 1990).
10th Circuit refuses to review district court’s failure to make downward departure. (860) Defendant argued that it was an abuse of discretion for the trial court to deny a downward departure. The 10th Circuit stated that the issue was not appealable, and that it lacked jurisdiction to consider the issue. U.S. v. Adams, 914 F.2d 1404 (10th Cir. 1990).
10th Circuit holds that district court did exercise discretion in refusing downward departure. (860) A jury convicted defendant of armed robbery, rejecting his insanity defense. The district court refused defendant’s request to make a downward departure on the basis of defendant’s diminished capacity. Defendant argued that the district court felt bound by the jury’s verdict rejecting his insanity defense, and thus incorrectly refused to exercise its discretion to make a downward departure on the basis of defendant’s diminished capacity. The 10th Circuit disagreed with this argument, finding that the district court refused to make a downward departure because of the potentially violent nature of defendant’s crime. Thus, the failure to make a downward departure was an exercise of discretion. U.S. v. Spedalieri, 910 F.2d 707 (10th Cir. 1990).
10th Circuit finds no jurisdiction to review failure to depart downward from sentence within guideline range. (860) The 10th Circuit held that when a sentence is within the guideline range and is not imposed in violation of law, or as a result of an incorrect application of the guidelines, then the district court’s refusal to exercise its discretion to depart downward from the guideline range is not appealable. U.S. v. Havens, 910 F.2d 703 (10th Cir. 1990).
10th Circuit holds that it can review refusal to depart downward if district court erroneously believes it is forbidden to depart downward. (860) The district court stated that it believed it was powerless to depart and therefore refused to do so. The 10th Circuit held that it had “jurisdiction to review this decision because a sentence imposed within the guideline range only because the court erroneously believed that the guidelines did not permit a downward departure is a sentence imposed as a result of an incorrect application of the sentencing guidelines.” U.S. v. Lowden, 905 F.2d 1448 (10th Cir. 1990).
10th Circuit holds it has no jurisdiction to review refusal to depart downward. (860) The 10th Circuit stated that “to the extent [defendant] claims the district court abused its discretion in refusing to make a downward departure from the guidelines, we lack jurisdiction to consider this contention.” The court noted that those circuits which have addressed the issue “uniformly agree” that a district court’s refusal to depart from the guidelines is not reviewable. U.S. v. Richardson, 901 F.2d 867 (10th Cir. 1990).
10th Circuit remands for clarification as to whether district court thought itself powerless to depart. (860) The District Court refused to depart downward, stating in part that, “I’m afraid, however, that I simply cannot use that circumstance as a basis for departing below the guidelines .ÿ.ÿ.ÿI believe it is simply a matter of interpreting the guidelines and I don’t believe that there’s anything I’ve seen in the motion that would justify my departure below the guidelines in this instance.” The 10th Circuit ruled that the reasoning behind the court’s refusal to depart was unclear. The matter was remanded to the District Court for clarification of its decision making process. U.S. v. Lowden, 900 F.2d 213 (10th Cir. 1990).
10th Circuit holds that discretionary refusal to depart downward is not appealable. (860) Defendant argued that because he made an offer of cooperation to the government and because of the disparity in sentencing between cocaine-based substances and powder cocaine, the trial court abused its discretion in refusing to depart downward. Relying on 18 U.S.C. § 3742, the 10th Circuit concluded that “we lack jurisdiction to consider the issue of whether the court abused its discretion in refusing to depart downward from the guidelines.” The defendant presented no argument that the court’s refusal to depart was a violation of law or was the result of an incorrect application of the guidelines. U.S. v. Davis, 900 F.2d 1524 (10th Cir. 1990).
11th Circuit says it will not review refusal to depart for reasonableness; only final sentence. (860) Defendant argued that it was unreasonable for the district court to deny him credit under § 5K2.23 for the six months he served in state prison for resisting officers and threatening to murder them. However, the Eleventh Circuit held that the refusal to depart was not reviewed for reasonableness. Under U.S. v. Booker, 543 U.S. 220 (2005), the final sentence is reviewed for reasonableness. After Booker, appellate review of decisions regarding downward departures remains the same – an appellate court lacks jurisdiction to review the decision of the district court not to apply a downward departure. Defendant’s two-year sentence was reasonable. The sentence was one-tenth the length of the 20-year maximum sentence for mail fraud that does not affect a financial institution. Defendant defrauded 21 people out of $19,600, had multiple previous convictions, committing this crime while still under sentence for a previous crime, violated his bond, and threatened to murder arresting officers as he fled. The court took care that its sentence provided defendant with needed medical care. The sentence was reasonable. U.S. v. Winingear, 422 F.3d 1241 (11th Cir. 2005).
11th Circuit holds that district court recognized authority to depart. (860) A district court’s refusal to grant a downward departure is not reviewable unless the court mistakenly believed that it lacked the authority to grant such a departure. Here, the court unambiguously recognized that it possessed the authority to downwardly depart saying specifically that “under § 5K2.0, though the Court recognizes the authority … for the Court to consider a downward departure, and I have very seriously thought through the presentation of the testimony … I do not find it appropriate under the facts and circumstances of this case….” Accordingly, the Eleventh Circuit found that it lacked the authority to review the refusal to depart. U.S. v. Torrealba, 339 F.3d 1238 (11th Cir. 2003).
11th Circuit will not review where court acknowledged its authority to depart. (860) Defendant was convicted of a number of environmental crimes based on his operation of an industrial plant. He argued for a departure under § 5K2.0, claiming that his case fell outside the heartland of other environmental prosecutions, and that he was at all times operating under the authority of the U.S. Bankruptcy Court, and upon the advice of his environmental counsel. As to a departure under § 5K2.11, he maintained that the district court erred in concluding that financial factors were not a “perceived greater harm” and in not understanding that the record supported his belief that a greater environmental and economic harm would occur if the plant failed to remain operational. The Eleventh Circuit ruled that the court was aware of its authority to depart, and therefore, the refusal to depart was not reviewable. At sentencing, the court acknowledged that it had authority to depart if it found that the circumstances of the case warranted a departure. However, the court found that the financial factors cited by defendant were not a perceived greater harm, and that defendant’s conduct was the type of conduct that the environmental laws sought to prevent. Moreover, it found that there were no factors which took this case outside the heartland of the environmental guidelines. Because the court acknowledged that it had the authority to depart, the appellate court lacked jurisdiction to review the decision. U.S. v. Hansen, 262 F.3d 1217 (11th Cir. 2001).
11th Circuit says court could not depart below minimum ACCA sentence under lesser harms theory. (860) Defendant argued that the district court erred in refusing to depart under § 5K2.11 based on a lesser harms theory. Defendant did not argue that the district court misconstrued its authority to depart; he claimed only that the court erred in not departing. Accordingly, the Eleventh Circuit found he could not appeal the court’s refusal to depart. Moreover, the statutes under which defendant was convicted and sentenced provided for a mandatory minimum sentence of 15 years. See 18 U.S.C. §§ 922(g)(1) and 924(e)(1). A court may only depart beneath the statutory minimum in limited circumstances. Defendant provided no authority for such a departure. U.S. v. Reynolds, 215 F.3d 1210 (11th Cir. 2000).
11th Circuit says defendant and co-conspirator not similarly situated. (860) Defendant argued that the district court mistakenly believed that it had no authority to depart based on the gross disparity between his sentence and White’s sentence, despite their similar conduct. The Eleventh Circuit concluded that the district court exercised its discretion in denying the departure based on its finding that defendant and White were not similarly situated. The court distinguished defendant’s situation from White’s, noting that unlike White, defendant chose to go to trial, which resulted in more evidence being presented against him,. Defendant also was charged with money laundering, unlike White, and defendant received an obstruction of justice enhancement. Thus, whether or not the court believed it had the authority to depart on the basis of a sentencing disparity, the court did not believe that any disparity existed here. U.S. v. Rudisill, 187 F.3d 1260 (11th Cir. 1999).
11th Circuit will not presume that district court believed it had no authority to depart downward. (860) Appellate courts lack jurisdiction to review a sentencing court’s refusal to depart downward when the decision is based on the court’s discretionary authority. However, an appellate court can review a refusal to depart if the sentencing court erroneously believed it lacked discretion authority to depart downward. Defendant argued that the district court believed it had no authority to depart downward because the court did not provide findings of fact, discuss the application of the guidelines to those facts, or state whether the case was atypical. The Eleventh Circuit joined the other circuits that have addressed this issue holding that when nothing in the record indicates otherwise, it will assume the sentencing court understood it had authority to depart downward. Here, there was no indication that the district court misunderstood its authority to depart downward and no party argued that court lacked authority to depart. The court did not express any ambivalence regarding its authority to depart and the evidence did not otherwise reflect the district court misunderstood its authority. U.S. v. Chase, 174 F.3d 1193 (11th Cir. 1999).
11th Circuit finds court was aware of authority to depart for cultural assimilation. (860) Defendant argued that the district court erroneously believed that it did not have the authority to depart downward on the basis of cultural assimilation, and that such a departure was warranted. The Eleventh Circuit held that it lacked jurisdiction to review the matter because it was apparent, after reviewing the transcripts, PSR, judgment, and all other portions of the record, that the sentencing judge was aware of his authority to depart in light of U.S. v. Lipman, 133 F.3d 726 (9th Cir. 1998). However, it would facilitate review if sentencing judges would state on the record that they believe they have or do not have the authority to depart. U.S. v. Sanchez-Valencia, 148 F.3d 1273 (11th Cir. 1998).
11th Circuit refuses review where court did not indicate it lacked authority to depart downward. (860) Defendant argued that was entitled to a downward departure because the INS notified him that he would be deported upon his release from prison, and a downward departure would save money. The Eleventh Circuit held that it lacked jurisdiction to review the refusal to depart because nothing in the record indicated that the district court thought that it lacked authority to depart. U.S. v. Reid, 139 F.3d 1367 (11th Cir. 1998).
11th Circuit rules court did not misunderstand authority to depart. (860) Defendant pled guilty to drug charges and was sentenced as a career offender based on a previous convictions for a drug crime and a firearms offense. At sentencing, the court expressed frustration at the sentence it was required to impose for defendant’s small-scale drug dealing, enhanced by one previous instance of small-scale dealing and a concealed firearm offense. Defendant asserted that the district court found that defendant’s criminal history was overstated, and that the court did not recognize its authority to depart downward under § 4A1.3. The Eleventh Circuit found no basis for this claim. The court did not suggest defendant’s criminal history did not accurately reflect the seriousness of his conduct. Rather, the court simply conveyed its discontent with the policy choices that Congress made in imposing high sentences for relatively minor crimes. U.S. v. Gilbert, 138 F.3d 1371 (11th Cir. 1998).
11th Circuit has no grounds to review refusal to depart downward. (860) Defendant alleged that the court erred in failing to depart downward from his sentence based on his age and maturity when he committed the prior offenses, the fact that the crime were committed within two years of each other, and the fact that his offense level was increased by the career offender provision. The Eleventh Circuit found no grounds to review the refusal to depart. The district court acknowledged that a 30-year sentence was harsh, but found that the two prior felonies were serious and that departure in this case was not appropriate. Absent an allegation that the court improperly concluded that it lacked the authority to depart downward, an appellate court cannot review a district court’s refusal to depart. U.S. v. Sanchez, 138 F.3d 1410 (11th Cir. 1998).
11th Circuit has no discretion to review refusal to depart. (860) Defendant contended that the district court should have departed downward based on various mitigating circumstances. The Eleventh Circuit held that it lacked jurisdiction to review the matter. A review of the sentencing transcript did not show that the judge’s refusal to depart was based on a misunderstanding of his authority to depart. Although the denial of defendant’s motion was somewhat cursory, it did not appear that the judge did not believe he could not depart downward if he found that it was warranted. U.S. v. Calderon, 127 F.3d 1314 (11th Cir. 1997).
11th Circuit upholds jurisdiction to review denial of safety valve protection. (860) Defendant challenged the district court’s refusal to grant him safety valve protection under 18 U.S.C. § 3553(f) and § 5C1.2. The government contended that the court’s decision was not reviewable on appeal. The Eleventh Circuit upheld its jurisdiction to review the denial of safety valve protection. Application of § 5C1.2 is not a downward departure from the guideline range; it allows a defendant to be sentenced within the guideline range by granting relief from a minimum sentence mandated by statute. While other circuits have not directly held that the denial of safety valve relief is appealable under § 3742(a), they have uniformly entertained appeals challenging such decisions. U.S. v. Cruz, 106 F.3d 1553 (11th Cir. 1997).
11th Circuit has no jurisdiction to review refusal to depart downward. (860) After continuing the sentencing hearing and reviewing submissions by both parties as to a possible downward departure, the district court rejected defendant’s request for a downward departure. It stated that “I have no choice but to follow the law, and I think my reading of the law requires me to deny the defendant’s motion for a downward departure.” The Eleventh Circuit held that it had no jurisdiction to review the refusal to depart, since the court understood its discretion to depart under § 5K2.0. The court was the one who invited defendant to file the motion for a downward departure. Its statement in denying the motion did not indicate the court misunderstood its authority. Rather, after reviewing the arguments of the parties and despite the court’s desire to minimize the sentence imposed, the court was unable to satisfy itself that the facts before it justified a downward departure. U.S. v. Brenson, 104 F.3d 1267 (11th Cir. 1997).
11th Circuit, for transferred prisoner, permits downward departure from guideline sentence. (860) Defendants were convicted of drug crimes in the Bahamas, sentenced to 48‑months, and transferred to the U.S. to serve their sentences. The U.S. Parole Commission found that defendants had guideline ranges well in excess of 48-months, but decided to depart downward based on the harsh prison conditions and beatings they faced while imprisoned in the Bahamas. Concluding that the foreign sentences themselves were more than sufficient departure, the examiner declined to fix release dates prior to expiration of the full terms of the foreign sentences. The Eleventh Circuit upheld the use of the applicable guideline ranges, rather than the foreign sentences, as the baseline for the downward departures. The Commission is not required to disregard the applicable guideline range when determining whether a downward departure should be ordered. The examiner here understood his authority to depart downward from the foreign sentences, but decided against such a departure given the seriousness of defendants’ crimes. A decision not to depart downward is not reviewable on appeal. Tramel v. U.S. Parole Commission, 100 F.3d 129 (11th Cir. 1996).
11th Circuit upholds refusal to depart under § 5K2.0 or § 5K2.13. (860) Defendant pled guilty to possessing a destructive device—a Claymore anti-personnel mine. He challenged the district court’s failure to depart downward under either § 5K2.0 or § 5K2.13 based upon his post-traumatic stress disorder and other mitigating circumstances. The Eleventh Circuit held that defendant did not qualify for a departure under § 5K2.13 and that it could not review the failure to depart under § 5K2.0. Defendant’s evidence showed how his diminished capacity might explain his dealings with other individuals which led to the discovery of the mine in his home. However, the evidence did not establish that the disorder caused defendant to possess the mine, which would be required under § 5K2.13. The court’s refusal to depart under § 5K2.0 was not reviewable. The district court considered all of defendant’s evidence of mitigating factors, from his military service to his psychological problems. It determined, within its discretion, that none of those factors constituted atypical grounds which could serve as the basis for a departure. U.S. v. Holden, 61 F.3d 858 (11th Cir. 1995).
11th Circuit lacks authority to review downward departure based on reduced mental capacity. (860) Defendant argued that the district court erred by refusing to depart downward under § 5K2.13 based on a reduced mental capacity. The 11th Circuit held that it lacked authority to review the refusal to depart. Such a refusal is reviewable only if it is based on the court’s misapprehension of its own discretionary authority to depart downward. Here, the district court refused to depart because it found insufficient evidence to prove that defendant’s reduced mental capacity contributed to the commission of the convicted offense. The district court clearly understood its authority to depart. U.S. v. Chigbo, 38 F.3d 543 (11th Cir. 1994).
11th Circuit concludes district court was aware of authority to depart. (860) The district court rejected defendants’ request for a downward departure under §5K2.10. The 11th Circuit refused to review the decision. Notwithstanding defendants’ claim to the contrary, the record indicated that the court was aware that it had the power to depart from the guideline range. It declined to grant a downward departure under §5K2.10 because it concluded that the facts of the case did not warrant it. Thus, there was no appealable issue. U.S. v. Baker, 19 F.3d 605 (11th Cir. 1994).
11th Circuit holds that government may appeal a Rule 35 determination. (860) Defendant originally received a 240-month sentence. One year after sentencing, the government moved under Rule 35(b) and guideline § 5K1.1 for a reduction in sentence based on defendant’s substantial assistance. The district court granted the motion, and sentenced defendant to time served, or 26 months. The 11th Circuit held that 18 U.S.C. § 3742(b) allows the government to appeal a Rule 35(b) determination, when that determination results in a sentence that satisfies the criteria for a government appeal in § 3742. The symmetrical structure of § 3742 shows that Congress intended appellate review of sentences to be available to the government on the same terms as to defendants. U.S. v. Chavarria-Herrara, 15 F.3d 1033 (11th Cir. 1994).
11th Circuit holds it lacked jurisdiction to review refusal to make further downward departure. (860) The district court departed downward under § 5K1.1 for substantial assistance, but refused to further depart under § 5K2.13 for diminished mental capacity. The 11th Circuit found that it lacked jurisdiction to review the refusal to depart further, since the district court was aware of its authority to depart under § 5K2.13. The court made a substantive analysis of defendant’s allegations regarding his mental impairment, and then refused to depart because it found that the impairment did not contribute to the commission of the offense. The court obviously understood the scope of its authority to depart downward, but, found that the requisite elements that would permit downward departure were not present. U.S. v. Patterson, 15 F.3d 169 (11th Cir. 1994).
11th Circuit refuses to review failure to depart. (860) The 11th Circuit held that a sentencing court’s refusal to depart downward is not appealable where the court believes that it has the authority to depart, but determines that the facts of the case do not warrant such action. Its review of the sentencing transcript showed that this was the case here. U.S. v. Flynt, 15 F.3d 1002 (11th Cir. 1994).
11th Circuit holds district court was aware of ability to depart based upon its departure for co-defendant. (860) Defendant argued that the district court was unaware that it could sentence him below the sentencing guidelines. The 11th Circuit found defendant’s argument without merit because the trial judge sentenced a co-defendant below the guidelines, “an obvious indication that the judge was cognizant that he could give a lesser sentence than the sentencing guidelines specify.” U.S. v. Smith, 918 F.2d 1551 (11th Cir. 1990).
11th Circuit refuses to review failure to depart downward. (860) Defendant argued that the district court failed to depart downward because it felt it did not have the authority to do so. The 11th Circuit noted that generally a defendant cannot appeal a court’s failure to depart downward. However, a defendant can appeal if it is clear that the district court did not believe that it had the authority to depart downward for the reasons requested by the defendant. In this case, after reviewing the transcript of the sentencing hearing, the 11th Circuit concluded without discussion that the district court believed it had the authority to depart downward but declined to exercise its discretion. U.S. v. Keller, 916 F.2d 628 (11th Cir. 1990).
11th Circuit holds that denial of government’s motion for downward departure is not a misapplication of guidelines. (860) Defendant challenged the district court’s denial of the government’s motion for a downward departure based on defendant’s substantial assistance to the government. Generally a defendant may not appeal a court’s failure to make a downward departure. However, the 11th Circuit reviewed the case for the limited purpose of determining whether the district court’s failure to make a downward departure violated the commentary to § 5K1.1, which provides that “substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance.” The 11th Circuit found that this commentary did not affect the judge’s discretion in determining whether to make a downward departure, and therefore found that the district court did not misapply the guidelines in refusing government’s motion for a downward departure. U.S. v. Castellanos, 904 F.2d 1490 (11th Cir. 1990).
11th Circuit holds that order deferring ruling on government’s cooperation motion is appealable. (860) A sentencing which falls within the applicable guideline range is appealable if the defendant alleges either that the sentence was imposed in violation of law, that the sentence was “plainly unreasonable and imposed for an offense for which there was no applicable guideline” or that the guidelines were incorrectly applied. Here the defendant claimed that the district court was required to rule on the government’s § 5K1.1 motion for downward departure based on cooperation at the time of sentencing. The 11th Circuit held that defendant was arguing that the sentence was imposed in violation of law, and therefore his appeal was proper. U.S. v. Howard, 902 F.2d 894 (11th Cir. 1990).
11th Circuit holds that defendants cannot appeal downward departures. (860) Defendant argued that the district court abused its discretion in failing to depart further downward from the guideline range. The 11th Circuit held that under § 3742 it lacked jurisdiction to hear appeals by defendants regarding the extent of downward departures absent an allegation that the sentence was imposed in violation of law or that there was no applicable sentencing guideline. “To permit a defendant to appeal a sentence which falls below the guideline range would make meaningless the specificity of § 3742(a)(3)” which allows defendants to appeal upward departures. U.S. v. Wright, 895 F.2d 718 (11th Cir. 1990).
11th Circuit holds defendant may not appeal from a judge’s refusal to depart downward from the guidelines. (860) The Eleventh Circuit noted that 18 U.S.C. § 3742(a)(3) permits a defendant to appeal only an upward departure from the guideline range. However, in this appeal, the defendant did not argue the merits of the court’s refusal to depart, but rather argued that the district court did not believe it had the statutory authority to depart downward. The court held the appeal was proper, but concluded that the district court was “clearly aware that it had the power to depart from the guideline range.” U.S. v. Fossett, 881 F.2d 976 (11th Cir. 1989).
11th Circuit holds refusal to depart is not grounds for appeal. (860) The 11th Circuit held that a district court’s refusal to depart from a guidelines sentence is not subject to review under 18 U.S.C. § 3742(a). U.S. v. Davis, 878 F.2d 1299 (11th Cir. 1989).
D.C. Circuit agrees that downward departure based on defendant’s advanced age and health was not warranted. (860) The district court denied defendant’s request to depart downward under U.S.S.G. §§ 5H1.1 and 5H1.4 based on his age and physical condition. The court agreed that 82-year old defendant was elderly. However, the court found that defendant did not meet the third element of § 5H1.1: that an alternative “form of punishment such as home confinement … be equally efficient as … incarceration.” The court concluded that home confinement would not be effective in restraining defendant’s criminal conduct because defendant had a history of dealing drugs in his home. As for § 5H1.4, the court found that defendant’s impairment was insufficient to qualify for a departure, noting that the guideline requires not just infirmity, but “extraordinary physical impairment.” The D.C. Circuit affirmed the refusal to depart. U.S. v. Brooke, 308 F.3d 17 (D.C. Cir. 2002).
D.C. Circuit says judge’s ambiguous statement did not show misunderstanding of departure authority. (860) Defendant argued on appeal that the district court erred in not departing downward from the career offender provisions of the guidelines. However, at no time had defendant asked the district court to depart based on these specific grounds. The D.C. Circuit concluded that the district court’s failure to grant an unrequested departure should be reviewed for plain error, and defendant did not demonstrate any such error. Defendant claimed the record showed the court below misunderstood its authority to depart because of statements by the judge indicating she sympathized with defendant but was required to follow sentencing rules. The cited language, however, was at most ambiguous, particularly in light of the court’s simultaneous acknowledgment that she “ha[d] some discretion,” and the absence of any express refusal to depart. Ambiguous statements cannot redeem a defendant’s failure to ask for departure. U.S. v. Draffin, 286 F.3d 606 (D.C. Cir. 2002).
D.C. Circuit affirms refusal to depart for family circumstances. (860) Defendant argued that he should have received a downward departure due to extraordinary family circumstances. However, although he contended that the district court erroneously thought itself without authority to depart, the record revealed that the court knew it had the authority but that it concluded a departure was unwarranted after examining the relevant circuit precedents. The D.C. Circuit found no error in its decision. U.S. v. Evans, 216 F.3d 80 (D.C. Cir. 2000).
D.C. Circuit finds record did not establish judge was unaware of authority to depart for career offender. (860) Defendant argued that the district judge was unaware of his authority under § 4A1.3 to order a downward departure from the career offender guideline range. At sentencing, defense counsel did not request a § 4A1.3 departure, complaining only about the harshness of the sentence in light of a variety of mitigating factors. The judge responded “I wish that there was some way I could give her a sentence less than the guidelines call for. I am going to sentence her at the bottom of the guidelines, but I am convinced that she needs a long period of abstinence and the treatment that she can get in the federal system.” The D.C. Circuit ruled that the record did not establish that the district judge misunderstood his departure authority. Since counsel never specifically argued for this departure, the judge’s comments must be evaluated in that context. The judge’s language was the kind of language that sentencing judges have always used, even before the guidelines, to mean that the judge could not in good conscience or with good judgment give as lenient a sentence as requested by defense counsel. Judge Rogers dissented. In re Sealed Case No. 98-3116, 199 F.3d 488 (D.C. Cir. 1999).
D.C. Circuit won’t disturb refusal to depart where court found defendant’s testimony incredible. (860) Defendant requested a downward departure under §§ 5K2.12 and 5K2.13 on grounds of diminished mental capacity, duress and coercion. At sentencing, defendant testified that her co-defendant’s physical, sexual and emotional abuse compelled her to participate in his fraud and money laundering scheme, or weakened her ability to resist such participation. Observing that defendant was “very articulate, sophisticated, [and] very intelligent,” the district court found “absolutely incredible” and “preposterous” defendant’s testimony that she simply did whatever her co-defendant told her to do and that she knew nothing about the source or amount of money going into and out of her bank account during the period of the charged conduct. Struck by defendant’s “total lack of candor,” the court rejected defendant’s claim that the abuse had debilitated her to such an extent that she was unable to control her own actions. Deferring to the district court’s credibility determination, the D.C. Circuit saw no grounds for disturbing the district court’s decision to deny defendant a downward departure. U.S. v. Rouse, 168 F.3d 1371 (D.C. Cir. 1999).
D.C. Circuit upholds refusal to depart downward in reverse sting case. (860) Defendant was held responsible for two kilograms of cocaine that his co-conspirators purchased from an undercover agent. He argued that he should have received a downward departure based on the “reverse sting” provision of note 15 to § 2D1.1. This authorizes a downward departure where the government sets a price for the controlled substance that is substantially below its market value. The D.C. Circuit upheld the refusal to depart since the court recognized its authority to depart and did not make a clearly erroneous factual finding. The court found that even if note 15 were applicable to defendant, it would not make a difference in the two kilograms of cocaine for which he was accountable. Thus, the court must have found either that the undercover agent did not set the price at an artificially low level or that defendant did not buy more than he otherwise would have because of the depressed price. Neither of these findings would have been clearly erroneous. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit upholds refusal to depart for youthful lack of guidance. (860) Defendant requested a downward departure based on a youthful lack of guidance since all his early role models, including his three older brothers, members of his extended family and his stepfather, were involved in dealing drugs. Vast amounts of drugs and guns were stored and processed in his home. The district court refused to depart, noting that he was raised in a household with a mother and a stepfather, and although there were concerns about drug dealers, there was no indication he was abused or neglected as a child. Defendant argued that the district court’s factual findings were clearly erroneous because the court found that his drug-dominated environment was stable. The D.C. Circuit refused to review the matter. The district court recognized it had the authority to grant a departure for youthful lack of guidance, acknowledged the involvement of virtually every member of defendant’s family in drug activity, yet decided not to depart. Although another decision would have been entirely legitimate, the district court had virtually unreviewable discretion not to depart. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit holds that court understood its authority to depart. (860) Defendants were police officers caught in a reverse sting after providing “protection” to an undercover agent posing as a drug dealer. In sentencing defendants to more than 49 years, the court said it did “not believe that the length of the sentence equates to the wrongness of the actions of the defendants.” However, it refused to depart because it found no principled basis for departure. Defendants argued that the district court misunderstood its authority to depart based on a combination of factors, no one of which would be a ground to depart. The D.C. Circuit ruled that the court properly understood its authority to depart. The court considered the totality of the circumstances, stating that none of the factors identified, either individually or collectively, made the case sufficiently unusual. The district court properly held that the lack of a connection between the officers’ conduct and the amount of drugs involved was not a basis for departure. Under U.S. v. Walls, 70 F.3d 1323 (D.C. Cir. 1995), sentencing entrapment and improper sentence factor manipulation are not grounds for departure. U.S. v. Washington, 106 F.3d 983 (D.C. Cir. 1997).
D.C. Circuit will not review refusal to depart for sentencing manipulation. (860) Defendant was one of several car salesmen caught in a sting operation in which an undercover officer posed as a drug dealer seeking to buys cars with the cash proceeds of cocaine sales. Defendant argued that the sentencing court erroneously failed to recognize its authority to depart under § 5K2.0 based on the “offense level inflation” caused by the massive vehicle purchases toward the end of the sting. The D.C. Circuit held that the refusal to depart was not appealable. The sentencing court specifically found that there was no improper government conduct and no sentencing manipulation. Thus, to the extent, if any, that the court was authorized to depart, it recognized its authority and declined to do so. U.S. v. Spriggs, 102 F.3d 1245 (D.C. Cir. 1996).
D.C. Circuit reviews factual finding that downward departure factor does not exist. (860) Defendant requested a downward departure under §§ 5K2.12 and 5K2.13, claiming her husband abused her during the period she committed the offense of conviction. The district court found no basis for departure. Defendant argued that the judge misunderstood the evidence relating to defendant’s qualification for a departure. The District of Columbia Circuit held that it could review a court’s factual finding that a downward departure factor does not exist. If a judge correctly understands the guidelines and the evidence, knows he can depart, and chooses not do, that decision is not reviewable. But if a judge mistakenly believes he lacks authority to depart, the decision is reviewable. Section 3742(e) instructs an appellate court to “accept the findings of fact of the district court unless they are clearly erroneous.” A clearly erroneous factual mistake used to determine whether to depart is “an incorrect application of the guidelines.” U.S. v. Sammoury, 74 F.3d 1341 (D.C. Cir. 1996).
D.C. Circuit says court understood ability to depart under § 5K2.13. (860) A psychologist concluded that defendant had an I.Q. of 67 and thus was mildly retarded. The district court refused to depart under § 5K2.13. The D.C. Circuit held that the court’s refusal to depart was beyond review since the court was aware of its authority to depart for diminished mental capacity, but simply chose not to in light of its own assessment of defendant and its experience with others with reduced mental capacities. U.S. v. White, 71 F.3d 920 (D.C. Cir. 1995).
D.C. Circuit finds court was aware it could depart downward from career offender guideline. (860) Defendant was sentenced as a career offender based on a 1974 robbery conviction and a 1981 attempted robbery conviction. The district court rejected defendant’s request for a downward departure based on the intervening years between convictions. Defendant argued that the court was unaware of its authority to depart from the career offender guideline. The D.C. Circuit concluded that the judge understood his discretion to depart but found insufficient reason to exercise it. The judge’s statement that he felt “constrained” to sentence defendant as a career offender did not show a misunderstanding of his discretion to depart. The judge’s comment that defendant was incarcerated for a good part of the time between convictions showed that the judge simply did not believe defendant’s case merited a departure. U.S. v. Shark, 51 F.3d 1072 (D.C. Cir. 1995).
D.C. Circuit assumes court was aware of authority to depart where defendant did not object to failure to explain rejection. (860) Defendant argued that his case should be remanded because the district court, without explanation, rejected his request for a downward departure based on the abuse and neglect he suffered as a child. He suggested that the court may have been unaware of its authority to depart. The D.C. Circuit refused to review the matter. Defendant had the initial responsibility of ensuring that the district court explained its reasoning for the record. Defendant neglected that responsibility when he failed to object to the district court’s ruling. Under these circumstances, the appellate court assumed that the district court knew and applied the law correctly. Therefore, the issue was not reviewable. U.S. v. Pinnick, 47 F.3d 434 (D.C. Cir. 1995).
D.C. Circuit refuses to review refusal to depart based on rehabilitative potential. (860) Relying on U.S. v. Harrington, 947 F.2d 956 (1991), defendant appealed the district court’s refusal to grant a downward departure based upon a psychological evaluation stating that he had enormous potential for rehabilitation which could be destroyed by a sentence within his guideline range. The D.C. Circuit ruled that the decision not to depart was unreviewable. Defendant’s reliance upon Harrington was mistaken. That case suggested that a defendant’s rehabilitation could be grounds for a reduction for acceptance of responsibility under guideline section 3E1.1. However, decisions not to depart from a guideline range are generally unreviewable absent a mistake of law or incorrect application of the guidelines. U.S. v. Sherod, 960 F.2d 1075 (D.C. Cir. 1992).
D.C. Circuit affirms refusal to depart based on “partial entrapment.” (860) Although defendant’s entrapment defense was not successful, he contended that the district court should have departed downward based upon the “partial entrapment,” i.e. his initial hesitation to sell crack cocaine. The D.C. Circuit refused to consider whether this was a valid ground for departure, since the district court ruled that even if such a defense were available, defendant had not displayed sufficient reluctance to warrant a departure. Discretionary judgments of this kind are not subject to appellate review. U.S. v. Salmon, 948 F.2d 776 (D.C. Cir. 1991).
D.C. Circuit holds “coercion” does not require downward departure. (860) Defendant argued that the district court improperly refused to depart downward for coercion under guideline § 5K2.12. Although defendant claimed to have presented evidence that he was the victim of physical injuries, property damage and threats of continued harm if he did not participate in the drug distribution ring, the D.C. Circuit refused to consider the claim. The guidelines do not require a downward departure in the case of coercion, and the district court’s decision not to depart is unreviewable. U.S. v. Jamison, 934 F.2d 371 (D.C. Cir. 1991).
D.C. Circuit rules it has no authority to review methodology employed in downward departure. (860) Defendant was classified as a career offender based on two prior felony convictions. The district court found that defendant’s criminal history was over-represented because one of his prior convictions arose under the Federal Youth Corrections Act. Accordingly, it departed downward from criminal history category VI to category IV. Defendant contended that in departing downward, the district court failed to follow the methodology in guideline § 4A1.3. The D.C. Circuit ruled that it had no authority to review the methodology employed by the district court in fashioning the downward departure. Defendant’s argument would place an appellate court in the inconsistent position of being able to review the methodology and justifications for the degree of a downward departure, while leaving it unable to review a decision not to depart. The court also rejected defendant’s argument that the district court misunderstood the scope of its authority to depart from the guidelines. U.S. v. Hazel, 928 F.2d 420 (D.C. Cir. 1991), overruled on other grounds by U.S. v. Dorcely, 454 F.3d 366 (D.C.Cir. 2006).
D.C. Circuit holds that decision not to depart is reviewable if based on mistake of fact or law. (860) The D.C. Circuit held that “while decisions not to depart from the sentence range prescribed by the guidelines may be within the discretion of the trial judge and therefore not subject to change by an appellate court, decisions apparently based upon a mistake of law or fact are reviewable under 18 U.S.C. § 3742(a)(2).” Here, however notwithstanding the judge’s “definitive statement that he would depart,” the 2nd Circuit found that the judge understood that the 21-month sentence was not a departure from the guidelines and that he did not misunderstand what it meant to depart. U.S. v. Zine, 906 F.2d 776 (D.C. Cir. 1990).
D.C. Circuit holds it has no power to review a refusal to depart downward. (860) The D.C. Circuit held that decisions not to depart downward from the applicable guidelines range are generally reviewable only to the extent that they were imposed in violation of law or were imposed as a result of an incorrect application of the sentencing guidelines 18 U.S.C. § 3742(a). Thus the D.C. Circuit held that the district court’s decision not to depart downward is reviewable only if the district court committed error in construing its own statutory authority to depart downward from the applicable guideline range. There was no such error in this case. U.S. v. Ortez, 902 F.2d 61 (D.C. Cir. 1990).
New York District Court challenges assumption that judges don’t know they can depart. (860) In sentencing defendant, the district court said, “I wish the law permitted me to do something, but it doesn’t.” The court of appeals found this statement unclear as to whether the district court understood it could depart for extraordinary family circumstances. On remand, District Judge Glasser noted that the court’s opinion cited a published opinion he wrote that extensively discussed departures for extraordinary family circumstances. Judge Glasser complained that the “patent assumption that United States District court judges are unaware of the law unless they explicitly manifest that they aren’t by reciting, mantra-like, ‘I am aware of my discretion but choose not to exercise it,’ demeans the very serious process of sentencing and the judge who presides over it.” U.S. v. Ekhator, 853 F.Supp. 630 (E.D.N.Y. 1994).