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


2-14-2002

USA v. Sees
Precedential or Non-Precedential:

Docket 1-2418




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Recommended Citation
"USA v. Sees" (2002). 2002 Decisions. Paper 121.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/121


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                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                             ___________

                             No. 01-2418
                             ___________


                     UNITED STATES OF AMERICA

                                 v.

                           THOMAS SEES,
                                       Appellant

          _______________________________________________

          On Appeal from the United States District Court
                   for the District of New Jersey
                   D.C. Criminal No. 00-cr-00247
                     (Honorable Joel A. Pisano)
                        ___________________


          Submitted Pursuant to Third Circuit LAR 34.1(a)
                          January 17, 2002

Before:   SCIRICA and ROSENN, Circuit Judges, and KANE, District Judge*

                     (Filed February 13, 2002)




     *The Honorable Yvette Kane, United States District Judge for the
Middle District of
Pennsylvania, sitting by designation.
                          ______________

                          MEMORANDUM OPINION
                            ______________


SCIRICA, Circuit Judge.

     This is a sentencing appeal. Thomas Sees pled guilty in the United
States District
Court for the District of New Jersey to a superseding information charging
that on
October 27, 1999, he knowingly and intentionally used a communication
facility (a
telephone) to facilitate the distribution and the possession with intent
to distribute
methamphetamine, a felony under 21 U.S.C.   841(a)(1), in violation of 21
U.S.C.
843(b). On appeal, Sees contends the District Court erred in failing to
grant a downward
departure under U.S.S.G. 5K2.0 based on extraordinary post-offense
rehabilitation.
     "We lack jurisdiction to review a refusal to depart downward 'when
the district
court, knowing it may do so, nonetheless determines that departure is not
warranted.'"
United States v. Sally, 116 F.3d 76, 78 (3d Cir. 1997) (quoting United
States v.
McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996)). At sentencing, the District
Court explicitly
articulated more than once that it had the power to depart from the
Guidelines based on
defendant's post-offense rehabilitation efforts. The court framed the
issue before it as
whether it should "exercise the discretion that I recognize I have in
order to make a
downward departure" on the basis of post-offense rehabilitation. (App.
62). The District
Court's recognition of its authority in this regard also was reflected in
the court's
willingness to hear testimony concerning defendant's post-offense
rehabilitation, and in
the court's discussion with counsel concerning whether to depart in view
of the facts of
this particular case. The District Court decided, however, that
defendant's post-offense
conduct was not "so exceptional" as to warrant a downward departure from
the
Guidelines.
     As a result, we lack jurisdiction to review the District Court's
refusal of a
downward departure in this matter. The appeal is dismissed for lack of
jurisdiction.



TO THE CLERK:

          Please file the foregoing opinion.




                                        /s/ Anthony J. Scirica
                                         Circuit Judge
DATED:   February 13, 2002
