                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-13-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1105




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Recommended Citation
"USA v. Rolon" (2002). 2002 Decisions. Paper 495.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/495


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                                                  NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                          NO. 02-1105
                           __________

                    UNITED STATES OF AMERICA

                               v.

                         RICARDO ROLON,
                                      Appellant
                           __________

       On Appeal from the United States District Court
                for the District of New Jersey
              (D.C. Criminal No. 01-cr-00583-1)
        District Judge: Honorable Nicholas H. Politan
                          __________

          Submitted Under Third Circuit LAR 34.1(a)
                      on August 1, 2002

       Before:   ROTH, RENDELL and AMBRO, Circuit Judges

                    (Filed: August 13, 2002)
                           __________

                      OPINION OF THE COURT
                           __________

RENDELL, Circuit Judge.
     Appellant Ricardo Rolon appeals from the judgment of conviction and sentence
entered by the District Court on December 21, 2001. At sentencing, Rolon moved for
downward departure on the ground that the career offender category operated to over-
represent his criminal history and his offense conduct. The District Court was aware that
it had the authority to grant a downward departure; however, it exercised its discretion
and denied Rolon’s request. Rolon asserts jurisdiction pursuant to 28 U.S.C. 1291 and
18 U.S.C. 3742, but as explained below we are without jurisdiction to review the
District Court’s discretionary denial of a downward departure. Accordingly, we will
dismiss the appeal for lack of jurisdiction.
     Rolon was charged on September 7, 2001 with possession of more than two
kilograms of cocaine with intent to distribute in violation of 21 U.S.C. 841. He
subsequently pled guilty pursuant to a plea agreement. The Presentence Investigation
Report ("PSI") recommended that Rolon be classified as a career offender under
U.S.S.G. 4B1.1 since his instant offense involved a controlled substance, he was 18
years or older at the time of its commission, and he was previously convicted of one
crime of violence and one controlled substance offense. As a result, the PSI
recommended a total offense level of 31, which included a stipulated three-level
downward adjustment for acceptance of responsibility. As a career offender, Rolon was
assigned a criminal history category of VI. The applicable guideline range, therefore,
was 188 to 235 months.
     At the sentencing hearing on December 19, 2001, the District Court adopted the
PSI and sentenced Rolon to 188 months in prison and five years supervised release.
During this hearing, Rolon moved for a downward departure based upon his claim that
his classification as a career offender over-represented the seriousness of his criminal
history. Rolon concedes that the court acknowledged its authority to depart and the
grounds upon which the departure application rested, although he claims that the court
did so in a "pro forma" manner. In denying his motion, the District Court stated, "The
Court is satisfied that no adequate showing has been made for downward departure on
the grounds indicated in the papers and [the Court] will adopt the Presentence Report as
being [its] findings in this matter. For the additional reasons more particularly set forth
in the government’s response to [Rolon’s] motion, I see no reason to downwardly
depart." By way of clarification, the court said, "I always have the authority [to depart in
the sentence]."
The District Court was aware that it had the authority to grant Rolon’s request for
a downward departure and exercised its discretion in denying this request. Under these
circumstances, we lack jurisdiction to review the sentence imposed by the District Court.
United States v. Torres, 251 F.3d 138, 151-152 (3d Cir. 2001).
     For the foregoing reasons, we will dismiss the appeal for lack of jurisdiction.
___________________________
TO THE CLERK OF COURT:
     Please file the foregoing Not Precedential Opinion.



                                                                           /s/ Marjorie O. Re
                                                                     Circuit Judge
