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


6-3-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2075




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                                NOT PRECEDENTIAL

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                    Nos.    01-2075 and 01-2079
                           ________________

                    UNITED STATES OF AMERICA

                                  v.

            DWIGHT BISHOP, Appellant in No. 01-2075
                 (D.C. Crim. No. 01-cr-00071-1)
         ----------------------------------------------
                    UNITED STATES OF AMERICA

                                  v.

               DWIGHT BISHOP, a/k/a AUBREY GREEN,
                       a/k/a HASSON CASON
            Dwight Bishop, Appellant in No. 01-2079
                 (D.C. Crim. No. 99-cr-00639-3)
                __________________________________

         On Appeal From the United States District Court
             For the Eastern District of Pennsylvania
          District Judge: Honorable Clarence C. Newcomer
             _______________________________________

            Submitted Under Third Circuit LAR 34.1(a)
                           May 20, 2002
      Before: BECKER, Chief Judge, GREENBERG, Circuit Judge,
     and BARZILAY, Judge, U.S. Court of International Trade.

                      (Filed: June 3, 2002)


                     _______________________

                             OPINION
                     _______________________

BECKER, Chief Judge.
     This is an appeal by defendant Dwight Bishop from a judgment in a criminal case
entered pursuant to a plea agreement. The appeal presents the oft-recurring question
whether a sentencing court that declined the invitation of the defendant to depart
downward from the U.S. Sentencing Guideline Range understood that it had authority to
depart but exercised its discretion not to, or rather was ruling (as a matter of law) that it
lacked power to depart. If a district court misapprehends its legal authority to depart
under the sentencing guidelines, we exercise plenary review. See, e.g., United States v.
Marin-Castaneda, 134 F.3d 551, 554 (3d Cir. 1998). But if a district court acknowledges
its authority to depart and decides not to do so, we lack appellate jurisdiction. United
States v. Stevens, 223 F.3d 239, 248 (3d Cir. 2000); United States v. Denardi, 892 F.2d
269, 271-72 (3d Cir. 1989). The fall back rule is stated in United States v. Mummert, 34
F.3d 201, 205 (3d Cir. 1994). There we held that, where it is impossible to tell whether
the district court’s ruling is based upon the proper exercise of discretion or an improper
interpretation of the applicable legal standard, the correct course of action is to vacate the
sentence and remand to the district court for clarification and reconsideration of its ruling.
     Bishop argued for a downward departure on two grounds: 1) diminished mental
capacity under Section 5K2.13 of the Guidelines; and 2) family circumstances under
Section 5K2.0. The District Court denied the request. In so ruling the Court did not state
whether its denial of the departure request was based on legal or discretionary grounds.
However, we are satisfied that the record shows that the decision not to depart was
discretionary.
     During the sentencing hearing, the government acknowledged the District Court’s
authority to depart.
                         Mr. Costello: Your Honor, briefly just on the    both
          the departure motions, the government’s position and it’s set
          forth in our response, I don’t intend to go through that unless
          Your Honor has specific questions but simply our position is
          that the defendant has not established that he was suffering
          from a significantly diminished mental condition, mental
          capacity, at the time he committed the offenses for which he
          is being sentenced. The circumstances he states are certainly
          worthy of Your Honor’s consideration and they certainly
          affect Your Honor’s determination on where within the
          applicable guideline range Your Honor sentences Mr. Bishop.
          It’s the government’s position that they don’t reach the level
          to justify departure.

                         Our position is the same with his family condition.
          There is no question that Mr. Bishop has attempted to do a lot
          of things for his family but, again, this does not reach that
          extraordinary level that is required before your honor can
          depart. There is no question Your Honor has the authority to
          depart, the discretion to do so. We just don’t feel on either
          basis you should exercise that authority.

(App. at 38-39) (emphasis added).

          We are satisfied that, under these circumstances, the Court understood its
authority to depart and, although neglecting to make its ratio decidendi clear, exercised
its discretion not to do so. Cf. United States v. Castano-Vasquez, 266 F.3d 228, 234 (3d
Cir. 2001) ("[A] district court . . . is not . . . obligated to explain its refusal to depart
downwards."); United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991) ("[A]
sentencing court does not commit reversible error under the Sentencing Reform Act by
failing to state expressly on the record that it has considered and exercised discretion
when refusing a defendant’s requested downward departure under the Guidelines."). We
hope and trust that instances where the district courts within this Circuit fail to articulate
the basis for their departure rulings will disappear. However, on this record, under our
jurisprudence, we are constrained to dismiss this appeal for lack of appellate jurisdiction.
See United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989).
     The appeal will be dismissed.                     ________________________
TO THE CLERK:
     Please file the foregoing Opinion.
                              By the Court:

                              /s/Edward R. Becker
                              Chief Judg
