                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JUN 8 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 99-3043
 v.
                                               (D.C. No. 97-CR-40065-GTV)
                                                    (District of Kansas)
 HOLLIS HENRY SMITH, III,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, MCKAY and LUCERO, Circuit Judges.



      Hollis Henry Smith, III, appeals from the sentence imposed by the district

court following his conviction for possession with intent to distribute cocaine in

violation of 18 U.S.C. § 841. He argues that the district court improperly denied

his motion for downward departure on the mistaken belief that pre-indictment

delay was not a permissible ground for such a departure. Exercising jurisdiction

pursuant to 28 U.S.C § 1291 and 18 U.S.C. § 3742, we affirm.


      *
         At the parties’ request, the case is unanimously ordered submitted
without oral argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
This order and judgment is not binding precedent, except under the doctrines of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.
       On February 23, 1995, Smith was arrested on state narcotics trafficking

charges. Following his arrest, state authorities initiated revocation of Smith’s

parole from an unrelated state incarceration. While his revocation proceeding

was pending, Kansas dismissed the narcotics charges. Smith remained in state

prison until November 27, 1996, at which time he was again paroled. On

September 10, 1997, a federal grand jury returned an indictment against Smith,

charging him with narcotics trafficking based on the same events underlying the

previously dismissed state charges. Smith was returned to state custody pursuant

to a state parole violation warrant on January 21, 1998   , and a week later he was

transferred into federal custody.

       Smith pleaded guilty to one count of possession with intent to distribute.

Prior to sentencing, he moved for a downward departure, arguing the government

had delayed seeking his indictment and as a result of that delay he served twenty-

one months of his state sentence that he otherwise would have served

concurrently with his federal sentence. 1 The district court denied the motion and

sentenced Smith to 151 months imprisonment.

       An appellate court only has “jurisdiction to review a sentencing court’s

refusal to grant a downward departure when the refusal is based on the court’s



       The figure of twenty-one months apparently represents the length of time
       1

between when he was taken into custody on the state charges in February 1995
and when he was released on parole in November 1996.

                                           -2-
conclusion that it lacks discretion to make the departure.”     United States v. Fagan ,

162 F.3d 1280, 1282 (10th Cir. 1998) (citing      United States v. Spedalieri , 910 F.2d

707, 710 (10th Cir. 1990)).    In order to meet his threshold burden of

demonstrating that the district court wrongly believed it lacked discretion to

depart downward on the basis of pre-indictment delay, Smith relies on the

following statement made by the court at sentencing:

       Mr. Smith, 151 months is a very, very long sentence. I think it’s
       probably unduly long. But I didn’t write the guidelines or write the
       statute. If it was my – left to my own personal desires, I would
       prefer to grant your downward departure, but it is my view that the
       law does not permit me to do that.

(I R. Doc. 80 at 23-24 (emphasis added).)

       Taken in isolation, this statement could be read to reflect the belief that

pre-indictment delay is never a permissible grounds for departure. However, that

statement must be read in the context of the entire sentencing proceeding. After

hearing both the defense and the prosecution present their arguments for and

against departure, the district court ruled on the motion:

       Well, I’m going to deny your motion for a downward departure
       because I believe that based on what [the Assistant United States
       Attorney] has said, that application note to Section 5G1.3 [of the
       United States Sentencing Guidelines], Application Note 6, would
       indicate is that this is a matter that was taken into consideration by
       the Sentencing Commission when it adopted the guidelines. And so
       a motion here which is under Section 5K2.0 of the Commission
       would require me to find that there exists an aggravating or
       mitigating circumstance of a kind or to a degree not adequately taken
       into consideration by the Sentencing Commission in formulating the

                                            -3-
      guidelines that should result in the sentence different from that
      described. And I do not believe that there is a basis for making such
      a finding . So the motion is denied.

(I R. Doc. 80 at 19-20 (emphasis added).) It is apparent from this discourse that

the district court recognized pre-indictment delay is grounds for departure in the

appropriate case; it simply held this was not such a case.

      Moreover, the analysis of the district court comports with established law.

The Supreme Court delineated how a sentencing court should analyze factors

offered in support of a motion for downward departure in     Koon v. United States ,

518 U.S. 81, 95-96 (1996) (quotations and citations omitted):

      If the special factor is a forbidden factor, the sentencing court cannot
      use it as a basis for departure. If the special factor is an encouraged
      factor, the court is authorized to depart if the applicable Guideline
      does not already take it into account. If the special factor is a
      discouraged factor, or an encouraged factor already taken into
      account by the applicable Guideline, the court should depart only if
      the factor is present to an exceptional degree or in some other way
      makes the case different from the ordinary case where the factor is
      present. If a factor is unmentioned in the Guidelines, the court must,
      after considering the structure and theory of both relevant individual
      guidelines and the Guidelines taken as a whole, decide whether it is
      sufficient to take the case out of the Guideline’s heartland.

      The district court concluded that the basis for departure urged by Smith is

taken into account by the Guidelines. As the government accurately represented

to the court, if a defendant is on parole when he commits the offense of

conviction, U.S.S.G § 5G1.3, comment. (n.6), requires the sentence imposed to

run consecutively with the term imposed for violation of probation. Thus, while

                                          -4-
that Guideline does not mention pre-indictment delay, it specifically addresses

any prejudice Smith suffered as a result of the delay by mandating the consecutive

sentencing Smith speculates could have been avoided by a prompt indictment.    2
                                                                                   In

any event, even if Smith is correct that the Guidelines do not take pre-indictment

delay into consideration, the ultimate analysis is essentially the same: whether

“the factor is present to an exceptional degree or in some other way makes the

case different from the ordinary case where the factor is present,” or, in other

words, whether the factor “is sufficient to take the case out of the Guideline’s

heartland.” Koon , 518 U.S. at 96. The district court found that no such

exceptional circumstance is present in this case. It is precisely such a finding that

is not subject to review on appeal.




      2
         The Ninth Circuit’s opinion in United States v. Martinez, 77 F.3d 332,
336 (9th Cir. 1996) is inapposite because it does not involve parole revocation.
Moreover, we do not consider Smith’s conclusory suggestion that he was
prejudiced because the delay gave the government a tactical advantage. In his
motion for downward departure he expressly conceded “that the federal
government did not delay filing his case to gain a tactical advantage or to in any
way intentionally prejudice this defendant.” (I R. Doc. 71 at ¶ 6.) We will not
entertain on appeal an argument in direct contradiction to an argument raised
below. In addition, Smith offers no specific instance of how the delay imparted a
tactical advantage to the government.

                                         -5-
The judgment of the district court is     AFFIRMED .


                                   ENTERED FOR THE COURT



                                   Carlos F. Lucero
                                   Circuit Judge




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