                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 11-1270
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                 JASON THOMPSON,
                                      Appellant
                                   _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                       (D.C. Crim. No. 1-10-cr-00336-001)
                    District Judge: Honorable Robert B. Kugler
                                 ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 22, 2011
                                  ______________

       Before: FISHER, HARDIMAN, and GREENAWAY, JR., Circuit Judges.

                            (Opinion Filed: October 4, 2011)
                                   ______________

                                       OPINION
                                    ______________

GREENAWAY, JR., Circuit Judge.

      Jason Thompson pled guilty to unlawful possession of a weapon by a convicted

felon. The District Court sentenced Thompson to 104 months of imprisonment and three

years of supervised release. He now appeals that sentence, claiming that the District
Court imposed an unreasonable sentence when it relied upon remote and related

convictions in setting his criminal history category at Category VI, rather than Category

V. However, Thompson conceded at sentencing, and again in his brief on appeal, that his

criminal history category was correctly calculated; he argues instead that the District

Court’s decision not to depart downward was an abuse of discretion.

         We lack authority to review a district court’s discretionary decision not to depart

downward. We will affirm.

                                        I. BACKGROUND

         Because we write primarily for the benefit of the parties, we recount only the

essential facts.

         Thompson was arrested on July 26, 2009, following an assault on his girlfriend.

Local authorities subsequently stopped him based on a description of his vehicle and

recovered a loaded, semi-automatic Glock pistol, which was later determined to be

stolen.1

         Thompson pled guilty to unlawful possession of a weapon by a convicted felon, in

violation of 18 U.S.C. § 922(g). In his plea agreement, Thompson stipulated to a Total

Offense Level of 23. He waived the right to any appeal that “challenges the sentence

imposed by the sentencing court if that sentence falls within or below the Guidelines

range that results from the agreed total Guidelines offense level of 23.” (App. at 21.)

However, he retained the right to appeal, pursuant to 18 U.S.C. § 3742, “the sentencing


1
    There is no suppression issue posed for this Court’s consideration.

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court’s determination of the criminal history category.” (App. at 21.) Additionally, he

reserved the right to move for a downward departure based on (1) his mental health or

diminished capacity; and (2) the over-representation of the seriousness of his criminal

history, pursuant to U.S.S.G. § 4A1.3(b). (Id.)

       In its Pre-Sentence Investigation Report (“PSR”), the Probation Department

calculated 20 criminal history points for Thompson, which fell within category VI.

Thompson’s criminal history included a number of drug possession and drug distribution

convictions, as well as convictions for robbery and assault.

       At sentencing, he argued that the court should reduce the criminal history score for

two reasons, which were also contained in his objections to the PSR.2 First, Thompson

pointed out that six of the points he received stemmed from two convictions that were

one month away from falling outside the fifteen-year time period set forth in U.S.S.G.

§ 4A1.2(e)(1). The Court found that these convictions were “accurately counted” and

that they “should be counted.” (App. 75.) Second, six of the points stemmed from

multiple convictions for what Thompson contended was a single cocaine distribution

scheme, which should therefore be counted as a single offense worth only three points.

(Id. at 74-79.) The Court denied this request, finding that the offenses occurred in




2
  The probation officer had revised the PSR in response to Thompson’s second objection,
concerning the separate scoring of convictions that Thompson argued were part of the
same scheme. Thompson was originally assigned twenty-six points, which were reduced
to twenty, pursuant to U.S.S.G. § 4A1.1(a). However, the corresponding criminal history
category remained VI regardless of that amendment.

                                             3
separate jurisdictions and were separated in time. (Id. at 79.) Thus, Thompson’s criminal

history score and his Criminal History Category remain at level VI.

       Category VI, in combination with the stipulated offense level of 23, produced a

Guidelines range of 92 to 115 months of imprisonment. Thompson asked for a sentence

of 84 months based on his age, family support, and employability, among other things.

After considering the § 3553(a) factors, the District Court sentenced Thompson to 104

months.

                II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.

This Court has jurisdiction over a challenge to the conviction under 28 U.S.C. § 1291 and

over a challenge to the sentence under 18 U.S.C. § 3742(a). However, this Court does

not have jurisdiction to review a district court’s discretionary decision not to depart

downward. United States v. Jones, 566 F.3d 353, 366 (3d Cir. 2009). This holding

extends to situations in which the defendant seeks a departure based on the argument that

the criminal history category over-represents the actual criminal history. United States v.

Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006), abrogated on other grounds by Kimbrough

v. United States, 552 U.S. 85 (2007).

                                     III. ANALYSIS

       As a threshold matter, we must determine whether Thompson’s appeal asks us to

review the District Court’s discretionary decision not to depart downward. Thompson

argues that “the district court abused its discretion and imposed an unreasonable sentence

by strictly adhering to the criminal history category recommended by the Guidelines.”

                                              4
(Appellant’s Br. at 9.) Thompson concedes that there was no error in the District Court’s

calculation of his criminal history score; instead, he argues that the specific facts of his

case required the Court to reduce that score nonetheless.3 (Id. at 6.)

       In United States v. Cooper, which laid out standards of review for sentencing in

the wake of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005), we held that a district court’s decision not to depart downward remained

unreviewable. 437 F.3d at 332-33. This holding is grounded in pre-Booker

jurisprudence, finding that Congress intended to foreclose such review with 18 U.S.C.

§ 3742(a) and (b), except where there was an allegation of legal error. Id. at 333 (citing,

inter alia, United States v. Ruiz, 536 U.S. 622, 626-28 (2002)). Because nothing in

Booker overruled Ruiz, the unreviewability of discretionary decisions not to depart

downward remains intact.

       Cooper addressed a downward departure motion pursuant to U.S.S.G. §4A1.3,

which allows for downward departure if “the defendant’s criminal history category

substantially over-represents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes.” An argument for a downward

departure from a correctly-calculated score is distinct from an argument that a criminal


3
  Thompson also contends that, because he specifically reserved his right to challenge the
District Court’s determination of his criminal history score, this claim remains available
to him despite the appellate waiver in his plea agreement. (Appellant’s Br. at 9.)
However, as we conclude, his appeal in fact challenges the denial of his downward
departure motion, and thus would not be reviewable even if no appellate waiver had been
signed.

                                              5
history score is incorrectly calculated. See United States v. Williams 510 F.3d 416, 426

(3d Cir. 2007) (“Rather, he argued that, notwithstanding that proper calculation [of the

criminal history score], he was entitled to receive a departure under the Guidelines on the

ground that a criminal history category III overstated his criminal history.”).

       Thompson concedes that the District Court made no procedural errors in imposing

his sentence and that the calculation of his criminal history score was technically correct.

(Appellant’s Br. at 8, 12, 15.) He also characterizes his argument on appeal as addressed

to the District Court’s decision to “set[] the defendant’s criminal history score at category

VI, rather than category V.” (Appellant’s Br. at 7). Moreover, he cites to the

commentary to U.S.S.G. §4A1.3 to support the point that the District Court abused its

discretion. (Id. at 12-13.) Although Thompson endeavors in his reply brief to re-

characterize his appeal as a challenge to the District Court’s alleged failure to grant a

variance, this argument is unpersuasive.4 Despite his rhetorical attempt to frame his

appeal as a challenge to the reasonableness of his sentence inasmuch as it is based on an

unfair criminal history score, Thompson clearly seeks review of the District Court’s

decision not to depart downward in assigning his criminal history category.

       Accordingly, as the District Court’s discretionary decision not to depart downward

is unreviewable, we lack jurisdiction over this appeal. We may not reach the merits of

Thompson’s claims.


4
 Although it is not relevant to our decision, it also appears that an appeal of the District
Court’s decision not to grant the variance would be foreclosed by Thompson’s plea
agreement. (App. 21.)

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                           IV. CONCLUSION

For the reasons set forth above, we will affirm the judgment of the District Court.




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