                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2004

USA v. D'Angelico
Precedential or Non-Precedential: Precedential

Docket No. 03-3537




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Recommended Citation
"USA v. D'Angelico" (2004). 2004 Decisions. Paper 436.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/436


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                         PRECEDENTIAL       Assistant United States Attorney
                                            Senior Appellate Counsel
 IN THE UNITED STATES COURT OF              FRANCIS C. BARBIERI, JR., ESQ.
APPEALS FOR THE THIRD CIRCUIT               Assistant United States Attorney
         _______________                    Office of United States Attorney
                                            615 Chestnut Street
              No. 03-3537                   Philadelphia, PA 19106
           ________________
                                            Attorneys for Appellee
    UNITED STATES OF AMERICA
                                            MAUREEN KEARNEY ROWLEY, ESQ.
                    v.                      Chief Federal Defender
                                            DAVID L. McCOLGIN, ESQ.
        ANTHONY D’ANGELICO,                 Assistant Federal Defender
                                            Supervising Appellate Attorney
                Appellant                   ELAINE DeMASSE ESQ.
                                            Assistant Federal Defender
  _______________________________           Senior Appellate Counsel
                                            Defender Association of Philadelphia
On Appeal From the United States District   Federal Court Division
     Court For the Eastern District         Curtis Center, Independence Square West
             of Pennsylvania                Suite 540 West
         (D.C. No. 02-cr-00738)             Philadelphia, PA 19106
 District Judge: Honorable Michael M.
                 Baylson                    Attorneys for Appellant
 _______________________________

Submitted Under Third Circuit LAR 34.1(a)          _______________________

              June 28, 2004                               OPINION
     Before: AMBRO, BECKER and                     _______________________
      GREENBERG, Circuit Judges
                                            BECKER, Circuit Judge.
          (Filed: July 19, 2004)               This appeal by defendant Anthony
                                            D’Angelico calls upon us once again to
PATRICK L. MEEHAN, ESQ.                     assess whether a Guidelines sentence must
United States Attorney                      be vacated and the matter remanded to the
LAURIE MAGID, ESQ.                          District Court because the parties have not
Deputy United States Attorney for           made a clear record on whether the District
Policy and Appeals                          Court’s denial of the downward departure
ROBERT A. ZAUZMER, ESQ.                     sought by D’Angelico— under U.S.S.G. §
5K2.13, based upon his putative mental                  to depart or state that its refusal to
retardation—was based on legal or                       depart resulted from the exercise of
discretionary grounds. If the refusal was on            its discretion.     Furthermore, the
legal grounds, we have jurisdiction; if it was          statement the court did make (“I do
discretionary, we do not. See United States             not find that there are grounds for a
v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir.             downward departure”) is ambiguous
1991). Because the background facts and                 regarding the basis for the court’s
procedural history generally do not bear on             ruling, as it equally supports both a
this issue, we need not set them forth, except          conclusion that the refusal to depart
insofar as they are necessary to our                    was based on a belief that one or
disposition.                                            more of the express limitations on the
                                                        court’s authority to depart did exist in
    Notwithstanding our injunction in United
                                                        this case, and a conclusion that the
States v. Mummert, 34 F.3d 201 (3d Cir.
                                                        refusal resulted from the exercise of
1994), that District Judges clearly note the
                                                        discretion. . . . As such, the record
basis for their refusal to depart downward,
                                                        fails to reveal whether denial of the
the issue keeps recurring.
                                                        departure was based on legal or
   What the District Judge said here was:               discretionary grounds.
   I do not find that there are grounds                  This argument is very strong. On the
   for a downward departure, as you                  other hand, the government points out that it
   have requested, and I’m going to deny             did not dispute at sentencing that the District
   that. But, I will sentence your client            Court had the authority to depart under the
   to the lower end of the guideline                 circumstances of this case. It goes on to
   range and in the hopes that he’s going            demonstrate the point:
   to have to spend about six years in
                                                        [W]hen the District Court asked for
   prison. Maybe he’ll get some time
                                                        the government to respond to the
   off for good behavior. And, he’ll just
                                                        defendant’s motion, the government
   understand that he can’t conduct
                                                        stated that “to some extent[,] there’s
   himself the way he was.
                                                        some validity to that position and [the
D’Angelico submits that the statement is less           government] would not object to
than pellucid:                                          some minimum departure in light of
                                                        the defendant’s diminished capacity
   Although U.S.S.G. § 5K2.13 [the
                                                        and the fact that his mental capacity
   Guideline at issue] expressly sets out
                                                        played some role in the offense here.”
   a number of limitations on the court’s
   departure authority, the district court           In Mummert we stated that where the
   made no explicit findings regarding               government concedes the plausibility of the
   any of those factors. Nor did the                 downward departure, “it seems quite likely
   court state that it had legal authority           that the district court’s refusal to depart . . .


                                                 2
was discretionary.” 34 F.3d at 205.                     downward). The appeal will therefore be
                                                        dismissed.
    We are chagrined that the district courts,
which could so easily make crystal clear
whether their refusal to depart is because
they do not believe that they have the
authority to do so or, conversely, whether
they understand their authority to depart and
exercise their discretion not to, so often fail
to take that opportunity. This is the case
here. Our frustration is not limited to the
courts, for the prosecutor and defense
counsel also bear responsibility. There is no
reason that, if a district court does not clarify
the basis for non-departure, counsel should
not remind the court to do so. Emphatically,
this is counsel’s responsibility for it is a
matter of preserving the record for appeal
(or, from the government’s point of view,
insulating the judgment from appeal).
Counsels’ failures engender needless appeals
and waste of time and funds. We expect
counsel to heed this injunction.
    Though this is not our preferred course,
the state of the record here does allow us to
divine, albeit indirectly, the basis for the
District Court’s refusal to depart downward.
The government acknowledged at sentencing
itself that the defendant was correct that the
Court had the power to depart. Given this,
we are satisfied that the able District Judge
in this case understood his authority to depart
and exercised his discretion not to do so.
Under the circumstances, we have no
appellate jurisdiction. See United States v.
Denardi, 892 F.2d 269, 272 (3d Cir. 1989)
(holding that the Court of Appeals lacks
jurisdiction under 18 U.S.C. § 3742 to
entertain an appeal from a district court’s
exercise of discretion in refusing to depart

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