                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2005

USA v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4679




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"USA v. Smith" (2005). 2005 Decisions. Paper 1425.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 03-4679
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                                    TYLER SMITH,

                                           Appellant
                                     ____________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 03-cr-00164-1)
                    District Judge: Honorable Christopher C. Conner
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 17, 2004

                Before: ALITO, AMBRO and FISHER, Circuit Judges.

                                 (Filed: March 29, 2005)
                                      ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      In his brief, appellant waives any challenge to his conviction, instead asking that

we remand for clarification as to whether the District Court’s denial of a downward

departure was based on an exercise of discretion. However, the record, including the
prosecutor’s concessions that departure would be lawful, make it clear that the District

Court understood its authority and simply exercised its discretion not to depart when

stating that a departure was “not warranted.” We therefore lack appellate jurisdiction

over this portion of the appeal. See United States v. Denardi, 892 F.2d 269 (3d Cir.

1989).

         We note that appellant also filed a post-briefing motion regarding other sentencing

issues arising from Blakely v. Washington, 124 S. Ct. 2531 (2004). Having determined

that these other sentencing issues are best determined by the District Court in the first

instance, we will vacate the sentence and remand for re-sentencing in accordance with

United States v. Booker, 125 S. Ct. 738 (2005).




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