                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2003

USA v. Carstarphen
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2593




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                                                                   NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT


                                        No. 02-2593


                              UNITED STATES OF AMERICA

                                             v.

                                HERBERT CARSTARPHEN,

                                          Appellant


           ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
                        THE DISTRICT OF NEW JERSEY

                                 (Dist. Court No. 01-cr-00119)
                        District Court Judge: Hon. Jerome B. Simandle


                         Submitted Under Third Circuit LAR 34.1(a)
                                      June 2, 2003

                 Before: ALITO, ROTH, and STAPLETON, Circuit Judges.

                                (Opinion Filed: June 5, 2003)


                                 OPINION OF THE COURT



ALITO, Circuit Judge:

       In this direct criminal appeal, Herbert Carstarphen contests the sentence imposed by

the District Court after it granted a downward departure under U.S.S.G. § 5K1.1.
Carstarphen acknowledges that we lack jurisdiction to review a discretionary refusal to

grant a departure or a discretionary decision regarding the extent of a departure, but

Carstarphen argues that the District Court committed legal error because its ruling was

based on an erroneous understanding of its legal authority to depart. In this connection,

Carstarphen first argues that “the District Court’s reasoning reveals a perception that it

possibly lacked the power to depart when cooperation did not lead to the arrest or

conviction of someone.” Appellant’s Br. at 18. However, since the District Court granted

a downward departure in this case based on assistance that did not lead to an arrest or

conviction, this argument is plainly wrong.

       Carstarphen then suggests that the District Court erred by “temper[ing] the extent of

the downward departure” because there was no arrest or conviction, id., but Carstarphen

does not explain why such “temper[ing]” is legal error, and later in his brief, he retreats

from this position, arguing as follows:

              [W]e are not arguing that cooperating defendants whose
              cooperation is substantial but does not result in an arrest or a
              prosecution are entitled to the identical departure as those
              cooperators whose cooperation does result in an arrest and a
              prosecution. Rather, we are arguing that Judge Simandle’s
              analysis of the cooperation was too mechanical and superficial.

Appellant’s Br. at 23. Carstarphen’s argument, then, seems to be that a District Court

commits legal error if its consideration of the value of a defendant’s cooperation is “too

mechanical and superficial.” It is doubtful that this is anything more than an abuse-of-

discretion argument in disguise, but in any event, we have reviewed the relevant portions of


                                              -2-
the record and conclude that the District Court understood the governing legal standards

and committed no legal error. In addition, we hold that the District Court did not commit

plain error in its disposition of the § 5K1.1 motion by failing to consider the defendant’s

alleged assistance in relation to drug sales. We likewise hold that, contrary to the

defendant’s argument, the District Court, in ruling on that motion, did in fact consider the

defendant’s danger.

       Carstarphen seeks an additional departure under § 5H1.4 based on what he

characterizes as “an extraordinary physical impairment,” but he failed to file the requisite

motion before the District Court. Whether this failure constituted a waiver, see, e.g.,

United States v. Woody, 55 F.3d 1257, 1276 (7th Cir. 1995), or merely limits our review

to plain error, there is no basis for reversal here. Considering the seriousness of the

conditions for which a section 5H1.4 departure is ordinarily warranted, see, e.g., United

States v. McQuilkin, 97 F.3d 723, 730 (3d Cir. 1996), and the fact that the District Court

specifically addressed the prison medical system’s capacity to provide adequate care, see,

e.g., United States v. Hernandez, 218 F.3d 272, 281 (3d Cir. 2000), we cannot characterize

the District Court’s failure to raise the issue sua sponte as plain error.

       We accordingly affirm the judgment of the District Court.




TO THE CLERK OF THE COURT:

       Kindly file the foregoing Not Precedential Opinion.

                                               -3-
Samual A. Alito, Jr.
Circuit Judge
