                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 10-3929
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                                CYRUS R. SANDERS
                                                       Appellant
                                  _______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                    (D.C. Crim. Action No. 1-09-cr-00316-004)
                  District Judge: Honorable William W. Caldwell
                                 _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 26, 2012
                                 _______________

        Before: GREENAWAY, JR., ROTH, and TASHIMA*, Circuit Judges.

                            (Opinion Filed: May 25, 2012)
                                 _______________

                                      OPINION
                                  ________________

GREENAWAY, JR., Circuit Judge.




      * Honorable   A. Wallace Tashima, Circuit Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
       Appellant Cyrus R. Sanders (“Sanders”) appeals the District Court’s September

22, 2010 Order sentencing him to a term of thirty-three months of imprisonment.

Sanders moved for a downward departure, based on “unduly harsh and inappropriate

conditions during pre-trial confinement at the Dauphin County Prison.” Specifically,

Sanders’s request for a downward departure was based on a brutal assault he allegedly

suffered while incarcerated in the Dauphin County Prison.

       The District Court denied Sanders’s motion. Sanders contends that the District

Court denied his motion because it incorrectly assumed that it did not have the authority

to grant the downward departure, particularly since he had filed a civil rights action under

42 U.S.C. § 1983. Sanders argues that the sentence imposed was unreasonable. For the

following reasons, we will dismiss the appeal for lack of jurisdiction.

                                  I.   BACKGROUND

       We write primarily for the benefit of the parties and shall recount only the

essential facts. Sanders was charged, along with twelve other co-conspirators, in a

thirteen-count indictment related to conspiracy to manufacture and the manufacture of

counterfeit United States currency. He pled guilty to Count nine, Pass and Utter

Counterfeit United States currency, pursuant to 18 U.S.C. § 472. As part of a written

plea agreement between the Government and Sanders, the Government agreed to

recommend a three-level reduction in Sanders’s sentence for acceptance of responsibility.

Sanders agreed to cooperate, and if it was determined that he provided substantial




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assistance, the Government indicated that it would file a § 5K1.1 motion seeking a

downward departure.

       After his guilty plea, a Pre-Sentence Investigation Report (“PSR”) was filed under

seal. Sanders objected to the PSR on several grounds, including the fact that he did not

receive a two-level reduction in his sentence for a mitigating role under U.S.S.G. §

3B1.2. 1 He also objected to the assessment of criminal history points. He claimed that

because he had engaged in a crime spree, each crime that made up part of his criminal

history should be aggregated, resulting in fewer criminal history points.

       At the sentencing hearing, Sanders withdrew his objections to the criminal history

points calculation. At that time, Sanders also moved for a downward departure, pursuant

to U.S.S.G. § 5K2.0, because of the treatment he received in the Dauphin County Prison.

Specifically, Sanders alleged that he was severely beaten by several prison guards, while

he was detained. He filed a prisoner’s civil rights action, pursuant to 42 U.S.C. § 1983,

against Manny Rose, the Commanding Officer, who allegedly slammed Sanders to the

floor and punched him several times. Sanders also named the Dauphin County Prison,

and other individual defendants based on his injuries. The Government suggested that

the District Court should consider the circumstances of the prison beating under 18

U.S.C. § 3553(a).




1
 After oral argument, the District Court determined that Sanders was not a minor
participant in the conspiracy and overruled his objection.

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       The District Court denied Sanders’s motion for downward departure, and

sentenced him to 33 months of imprisonment. Sanders filed a timely appeal.

               II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction, pursuant to 18 U.S.C. § 3231. Our jurisdiction

to consider Sanders’s argument “depends on the basis for the district court’s ruling.”

United States v. Stevens, 223 F.3d 239, 247 (3d Cir. 2000). “We do not have jurisdiction

to review discretionary decisions by district courts to not depart downward. Jurisdiction

arises, however, if the district court’s refusal to depart downward is based on the

mistaken belief that it lacks discretion to do otherwise.” United States v. Vargas, 477

F.3d 94, 103 (3d Cir. 2007), abrogated by U.S. v. Arrelucea-Zamudio, 581 F.3d 142 (3d

Cir. 2009). (Internal citations omitted.)

                                III.    ANALYSIS

       Sanders argues that the District Court erred in basing its refusal to grant his motion

for a downward departure on an unreasonable understanding that it could not depart

because Sanders filed a prisoner’s civil rights action, pursuant to 42 U.S.C. § 1983. The

Government contends that this appeal should be dismissed for lack of jurisdiction over

the District Court’s discretionary denial of a motion for downward departure.

       The sentencing court may impose a sentence outside the range established
       by the applicable guidelines, if the court finds that there exists an
       aggravating or mitigating circumstance of a kind, or to a degree, not
       adequately taken into consideration by the Sentencing Commission in
       formulating the guidelines that should result in a sentence different from
       that described.’. . . The decision as to whether and to what extent departure
       is warranted rests with the sentencing court on a case-specific basis . . . .

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       [the] [p]resence of any such factor may warrant departure from the
       guidelines, under some circumstances, in the discretion of the sentencing
       court.

Stevens, 223 F.3d at 247 n.8 (quoting U.S.S.G. § 5K2.0).

       Here, the District Court’s colloquy with the Government at sentencing exemplifies

a clear understanding that the court may exercise its discretion, if appropriate. The

Government commented initially that “[t]he Court certainly could consider that

information [relating to Sanders’s complaints of brutality], as it can consider all

information in sentencing, and if it determines that it should give some kind of credit for

that story, it certainly is within the Court’s discretion to do that under the [§] 3553(a)

factors.”

       The District Court responded “I recognize that. I just don’t see how I can get

involved in determining which side of this thing is correct. I mean, that’s why you have

filed a lawsuit against the people at the Dauphin County Prison. But as regrettable as the

incident was, however it happened, I just don’t think that that’s anything that I can

consider in mitigation at this point. So I’m going to have to deny that motion for a

downward departure.” (App. Vol. 2, 25a-26a.)

       The District Court’s statement evidences that the court understood that it may

exercise its discretion and take the Dauphin County jail incident into account for

sentencing purposes. The facts here are similar to those in Stevens, where we concluded

that the District Court’s consideration of the information presented by the defendant was

within its discretion.

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       “When the district court stated that ‘I don’t think what has been represented
       to the court here is the type of incarceration that would warrant any
       consideration on the guidelines for departure,’ the Court was not stating
       that it had no legal authority to grant a departure based on the conditions of
       Stevens’s pretrial confinement, but rather that Stevens had not persuaded
       the court that a departure was appropriate in his case. This was an exercise
       of discretion and therefore unreviewable.”

See Stevens, 223 F.3d at 248.

       As was true in Stevens, we have no jurisdiction over a district court’s discretionary

denial of a motion for downward departure. Here, the District Court appropriately

exercised its discretion.

                                 IV.    CONCLUSION

       We will dismiss this appeal from the District Court’s sentencing order.




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