                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0002n.06
                            Filed: January 3, 2005

                                           No. 03-3131

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )
                                                 )    ON APPEAL FROM THE UNITED
ANTHONY MALONE,                                  )    STATES DISTRICT COURT FOR THE
                                                 )    NORTHERN DISTRICT OF OHIO
       Defendant-Appellant.                      )
                                                 )
                                                 )
                                                 )



Before: MOORE and GIBBONS, Circuit Judges, and MILLS, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Anthony Malone appeals the sentence imposed

upon his plea of guilty to one count of unarmed robbery in violation of 18 U.S.C. § 2113(a). At

sentencing, the district court determined that, due to Malone’s two previous convictions for

controlled substance offenses, he was to be sentenced as a career offender pursuant to United States

Sentencing Guideline (“USSG”) § 4B1.1. The court then granted Malone’s request for a downward

departure pursuant to USSG § 4A1.3 based on a finding that Malone’s criminal history category

substantially overrepresented the seriousness of his criminal history and reduced his total offense




       *
          The Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
No. 03-3131
United States v. Malone

level by five points. Thereafter, the district court sentenced Malone to an imprisonment term of 102

months and three years of supervised release.

       On appeal, Malone argues that the district court failed to apply properly the sentencing

guidelines in refusing to grant a greater downward departure. A defendant’s appeal from a final

sentence is governed by 18 U.S.C. § 3742.

       Upon review, we conclude that Malone’s argument does not fit within the confines of §

3742. It is well established in this circuit that this court lacks jurisdiction to hear an appeal

“contesting the extent of a downward departure as such appeals do not fall under 18 U.S.C. § 3742.”

United States v. Nesbitt, 90 F.3d 164, 166 (6th Cir. 1996); United States v. Gregory, 932 F.2d 1167,

1168-69 (6th Cir. 1991). Because the sentencing judge was obviously aware of his ability to depart

downward from the sentencing guidelines, evidenced by the fact that he granted Malone a five level

departure, the extent of the downward departure is not reviewable. See Nesbitt, 90 F.3d at 166.

       Accordingly, we hereby dismiss the appeal for a lack of jurisdiction and affirm Malone’s

conviction and sentence.




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