                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               AUG 3 2000
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 99-6340
                                                    (D.C. No. 98-CR-244-C)
    ROSHELDON NEGIL JENKINS,                              (W.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant pleaded guilty to distributing crack cocaine. In light of

substantial assistance provided to the government pursuant to U.S.S.G. § 5K1.1,



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the district court departed from the applicable sentencing guideline range of

188 to 235 months and imposed a sentence of 120 months, with four years’

supervised release and a $100.00 special assessment. Defendant appeals from

this sentence on the ground that the district court improperly considered certain

allegations of unadjudicated wrongdoing in limiting the degree of downward

departure afforded pursuant to § 5K1.1. We dismiss the appeal for lack of

jurisdiction under 18 U.S.C. § 3742(a).

      Defendant concedes that the extent of a downward departure is generally

not subject to review under § 3742(a) (listing permissible grounds for sentencing

appeal by defendant).   See United States v. McHenry , 968 F.2d 1047, 1049

(10th Cir. 1992); see also United States v. Neary , 183 F.3d 1196, 1197 (10th Cir.

1999) (noting same lack of jurisdiction under § 3742(a) in context of appeal from

limited departure granted pursuant to Fed. R. Crim. P. 35(b) motion). However,

he insists this appeal falls within the scope of § 3742(a)(1), which permits review

of sentences “imposed in violation of law.” Specifically, he contends the district

court acted illegally in considering collateral allegations of domestic abuse

because (1) such conduct was unrelated to the factors listed in § 5K1.1 regarding

assistance to the government, and (2) the allegations had not been adjudicated in

state court or established by evidence adduced in this proceeding.




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       We rejected a similar attempt to use § 3742(a)(1) as a vehicle to challenge

a limited downward departure under § 5K1.1 in        Neary. As a general matter, we

explained that the “facial illegality” necessary to invoke this basis for jurisdiction

must entail “race, gender, or other considerations contravening clearly established

public policy.”      Neary , 183 F.3d at 1198. In particular, we held there was nothing

illegal in the sentencing judge’s consideration of matters (the defendant’s role and

participation in the offense) which were unrelated to the nonexclusive factors

listed in § 5K1.1.     See id. This holding refutes defendant’s first objection.

       Neary did not address the second point raised, regarding the unadjudicated

and unsubstantiated nature of the abuse allegations against defendant. But, we

have on other occasions held unadjudicated crimes may be considered at

sentencing without due process concern.        See Boyd v. Ward , 179 F.3d 904, 918

(10th Cir. 1999) (following      Hatch v. Oklahoma , 58 F.3d 1447, 1465 (10th Cir.

1995)), cert. denied , 120 S. Ct. 1188 (2000). Far from indicating a public policy

against the consideration of such conduct, the Sentencing Guidelines themselves

clearly contemplate its use in various contexts, including assessment of relevant

conduct under U.S.S.G. § 1B1.3 and imposition of upward departures under

U.S.S.G. § 5K2.0.       See, e.g. , United States v. Watts , 519 U.S. 148, 152-54 (1997);

United States v. Big Medicine , 73 F.3d 994, 997 (10th Cir. 1995). As for

substantiation, the abuse in question was identified in government pleadings to


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revoke defendant’s release on bond, which counsel clearly acknowledged when

conceding that “it’s probably appropriate that you do weigh that but maybe not as

heavily as it would appear on paper,” R. Vol. 2 at 23. Under the circumstances,

“[t]he court had credible information on [the unadjudicated wrongdoing] which

could be considered in sentencing.”      United States v. Carr , 66 F.3d 981, 983-84

(8th Cir. 1995). Further, neither at sentencing nor on appeal has defendant

asserted that the arrest information provided by the government was false or that

the underlying abuse did not in fact occur.         See id. at 983 (“due process violation

is established only if the defendant shows that the district court relied on

materially false information”).

       Defendant has failed to demonstrate that the extent of the district court’s

departure--a decision otherwise within its exclusive, unreviewable discretion--was

“in violation of law” so as to implicate § 3742(a)(1). “Because we conclude that

Defendant’s sentence was not based on a facially illegal factor, we lack

jurisdiction to hear this appeal.”    Neary , 183 F.3d at 1198.

       APPEAL DISMISSED.

                                                            Entered for the Court



                                                            Bobby R. Baldock
                                                            Circuit Judge



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