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


5-7-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 01-4142




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Recommended Citation
"USA v. Issa" (2003). 2003 Decisions. Paper 570.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/570


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                              NOT PRECEDENTIAL
 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT




               No: 01-4142
             ______________

     UNITED STATES OF AMERICA

                      v.


           MOHAMMAD ISSA,

                      Appellant




Appeal from the United States District Court
         for the District of New Jersey
  (D.C. Criminal Action No. 01-cr-00145)
District Judge: Honorable Nicholas H. Politan


Submitted Under Third Circuit LAR 34.1(a)
           on March 3, 2003

          Before: ROTH, BARRY
       and FUENTES, Circuit Judges

        (Opinion filed: May 7, 2003)
                                        OPINION


ROTH, Circuit Judge:

       Mohammad Issa pled guilty to one count of unlawful re-entry into the United

States in violation of 8 U.S.C. §§ 1326 (a) and 1326 (b)(2). Issa was sentenced to 30

months imprisonment.1

       Issa’s attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

expressing his belief that there were no non-frivolous issues presented for our review. As

required by Anders, counsel directed us to portions of the record that might arguably

support an appeal. Also, as required by Anders, Issa was given notice of his attorney’s

desire to withdraw, allowing him the opportunity to raise any issues for appeal in a

supplemental pro se brief. He failed to do so. Issa’s attorney raised one possible ground

for appeal: whether the District Court erred in not granting a downward departure

pursuant to U.S.S.G. § 5K2.0.

       U.S.S.G. § 5K2.0 gives the District Court discretion to sentence outside the

recommended guidelines if the court finds there to be an aggravating or mitigating

circumstance that the Sentencing Commission may not have taken into consideration


       1
        At the time this appeal was filed, Issa had approximately 5 days remaining of his
imprisonment. At the time of this review, Issa still has approximately 2 years of
supervised release remaining. It is not clear from the briefs if Issa is serving this release
in the United States or elsewhere. However, it seems that jurisdiction is not a question.

                                              2
when formulating the guidelines. This section also points out that this is a case-by-case

determination for the court.

       Issa argued to the District Court that his mitigating circumstance was that he had

no choice but to board a flight to the United States with his minor sons as they were

fleeing violent unrest in Palestine. However, the District Court, under its proper

discretion, rejected this argument and denied Issa’s U.S.S.G. § 5K2.0 motion to

downward depart. We find that the District Court did not abuse its discretion.

       For the foregoing reasons, we will dismiss the appeal for lack of jurisdiction, and

we will grant counsel’s request to withdraw.




                                               3
TO THE CLERK:


    Please file the foregoing Opinion.




                                         By the Court,




                                                /s/Jane R. Roth
                                               Circuit Judge




                                           4
