Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

7-19-2004

USA v. D'Angelico Precedential or Non-Precedential: Precedential

Docket No. 03-3537

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Recommended Citation "USA v. D'Angelico" (2004). 2004 Decisions. Paper 436. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/436

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. PRECEDENTIAL Assistant United States Attorney Senior Appellate Counsel IN THE UNITED STATES COURT OF FRANCIS C. BARBIERI, JR., ESQ. APPEALS FOR THE THIRD CIRCUIT Assistant United States Attorney _______________ Office of United States Attorney 615 Chestnut Street No. 03-3537 Philadelphia, PA 19106 ________________ Attorneys for Appellee UNITED STATES OF AMERICA MAUREEN KEARNEY ROWLEY, ESQ. v. Chief Federal Defender DAVID L. McCOLGIN, ESQ. ANTHONY D’ANGELICO, Assistant Federal Defender Supervising Appellate Attorney Appellant ELAINE DeMASSE ESQ. Assistant Federal Defender _______________________________ Senior Appellate Counsel Defender Association of Philadelphia On Appeal From the United States District Federal Court Division Court For the Eastern District Curtis Center, Independence Square West of Pennsylvania Suite 540 West (D.C. No. 02-cr-00738) Philadelphia, PA 19106 District Judge: Honorable Michael M. Baylson Attorneys for Appellant _______________________________

Submitted Under Third Circuit LAR 34.1(a) _______________________

June 28, 2004 OPINION Before: AMBRO, BECKER and _______________________ GREENBERG, Circuit Judges BECKER, Circuit Judge. (Filed: July 19, 2004) This appeal by defendant Anthony D’Angelico calls upon us once again to PATRICK L. MEEHAN, ESQ. assess whether a Guidelines sentence must United States Attorney be vacated and the matter remanded to the LAURIE MAGID, ESQ. District Court because the parties have not Deputy United States Attorney for made a clear record on whether the District Policy and Appeals Court’s denial of the downward departure ROBERT A. ZAUZMER, ESQ. sought by D’Angelico— under U.S.S.G. § 5K2.13, based upon his putative mental to depart or state that its refusal to retardation—was based on legal or depart resulted from the exercise of discretionary grounds. If the refusal was on its discretion. Furthermore, the legal grounds, we have jurisdiction; if it was statement the court did make (“I do discretionary, we do not. See United States not find that there are grounds for a v. Georgiadis,

(3d Cir. downward departure”) is ambiguous 1991). Because the background facts and regarding the basis for the court’s procedural history generally do not bear on ruling, as it equally supports both a this issue, we need not set them forth, except conclusion that the refusal to depart insofar as they are necessary to our was based on a belief that one or disposition. more of the express limitations on the court’s authority to depart did exist in Notwithstanding our injunction in United this case, and a conclusion that the States v. Mummert,

(3d Cir. refusal resulted from the exercise of 1994), that District Judges clearly note the discretion. . . . As such, the record basis for their refusal to depart downward, fails to reveal whether denial of the the issue keeps recurring. departure was based on legal or What the District Judge said here was: discretionary grounds. I do not find that there are grounds This argument is very strong. On the for a downward departure, as you other hand, the government points out that it have requested, and I’m going to deny did not dispute at sentencing that the District that. But, I will sentence your client Court had the authority to depart under the to the lower end of the guideline circumstances of this case. It goes on to range and in the hopes that he’s going demonstrate the point: to have to spend about six years in [W]hen the District Court asked for prison. Maybe he’ll get some time the government to respond to the off for good behavior. And, he’ll just defendant’s motion, the government understand that he can’t conduct stated that “to some extent[,] there’s himself the way he was. some validity to that position and [the D’Angelico submits that the statement is less government] would not object to than pellucid: some minimum departure in light of the defendant’s diminished capacity Although U.S.S.G. § 5K2.13 [the and the fact that his mental capacity Guideline at issue] expressly sets out played some role in the offense here.” a number of limitations on the court’s departure authority, the district court In Mummert we stated that where the made no explicit findings regarding government concedes the plausibility of the any of those factors. Nor did the downward departure, “it seems quite likely court state that it had legal authority that the district court’s refusal to depart . . .

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. downward). The appeal will therefore be dismissed. We are chagrined that the district courts, which could so easily make crystal clear whether their refusal to depart is because they do not believe that they have the authority to do so or, conversely, whether they understand their authority to depart and exercise their discretion not to, so often fail to take that opportunity. This is the case here. Our frustration is not limited to the courts, for the prosecutor and defense counsel also bear responsibility. There is no reason that, if a district court does not clarify the basis for non-departure, counsel should not remind the court to do so. Emphatically, this is counsel’s responsibility for it is a matter of preserving the record for appeal (or, from the government’s point of view, insulating the judgment from appeal). Counsels’ failures engender needless appeals and waste of time and funds. We expect counsel to heed this injunction. Though this is not our preferred course, the state of the record here does allow us to divine, albeit indirectly, the basis for the District Court’s refusal to depart downward. The government acknowledged at sentencing itself that the defendant was correct that the Court had the power to depart. Given this, we are satisfied that the able District Judge in this case understood his authority to depart and exercised his discretion not to do so. Under the circumstances, we have no appellate jurisdiction. See United States v. Denardi,

(3d Cir. 1989) (holding that the Court of Appeals lacks jurisdiction under

to entertain an appeal from a district court’s exercise of discretion in refusing to depart

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