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


1-17-2002

USA v. Orozco
Precedential or Non-Precedential:

Docket 99-5070




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Recommended Citation
"USA v. Orozco" (2002). 2002 Decisions. Paper 21.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/21


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                                                 NOT-PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                          __________

                            NO. 99-5070
                             __________

                      UNITED STATES OF AMERICA

                                 v.

                            OMAR OROZCO,
                                                    Appellant
                             _________

        On Appeal from the United States District Court
                 for the District of New Jersey
                (D.C. Criminal No. 98-cr-00077)
           District Judge: Honorable Joseph E. Irenas
                           __________

           Submitted Under Third Circuit LAR 34.1(a)
                        January 16, 2002

      Before: RENDELL, FUENTES and MAGILL*, Circuit Judges

                  (Filed:     January 17, 2002)
                             __________

                          MEMORANDUM OPINION
                              __________


RENDELL, Circuit Judge.

___________________

     *Honorable Frank J. Magill, United States Circuit Judge for the
Eighth Circuit,
sitting by designation.
     Orozco appeals the District Court sentencing order, contending that
the District
Court abused its discretion in labeling him as a "leader or organizer,"
and erred in not
granting a downward departure for his rehabilitative efforts.
     The first issue, namely as to whether Orozco should have been
classified as a
"leader or organizer", was noted in Orozco's summary of his argument, but
never
discussed in his brief. Accordingly, this argument has been waived. See
Linder &
Assoc., Inc. v. Aetna Casualty & Surety Co., 166 F.3d 547, 552, n. 5 (3rd
Cir. 1999). See
also Merkle v. Upper Dublin School Dist., 211 F.3d 782, 791 ( 3rd Cir.
2000).
     With respect to Orozco's second argument, namely that a downward
departure
should have been granted based upon his rehabilitative efforts, we
conclude that we lack
jurisdiction to review this discretionary ruling on the part of the
District Court. It is clear
from the record that the District Court recognized that it had the
authority to depart based
upon Orozco's post offense rehabilitation, but that it concluded that the
conduct was not
so extraordinary as to take the case out of the "heartland" so as to
justify a downward
departure. Instead, the District Court exercised its discretion and
imposed a sentence at
the bottom of the applicable guideline range. Accordingly, we lack
jurisdiction to review
the District Court's discretionary refusal to depart in this case. See
United States v.
Price, 13 F.3d 711, 736 (3d Cir. 1994).
     We will accordingly affirm the District Court's ruling.
_________________________
TO THE CLERK OF COURT:
     Please file the foregoing memorandum opinion.



                                       /s/   Marjorie O. Rendell
                                   Circuit Judge
