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


1-18-2002

USA v. Joseph
Precedential or Non-Precedential:

Docket 1-1561




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"USA v. Joseph" (2002). 2002 Decisions. Paper 22.
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NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                             ___________

                             No. 01-1561
                             ___________


                    UNITED STATES OF AMERICA

                                 v.

                           EDISON JOSEPH,
                                       Appellant


         _______________________________________________

         On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                 D.C. Criminal No. 1-cr-00071-02
                   (Honorable Sylvia H. Rambo)
                       ___________________


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                         October 11, 2001

                  Before: BECKER, Chief Judge,
              SCIRICA and GREENBERG, Circuit Judges

                    (Filed   January 17, 2002)

                           ______________

                          MEMORANDUM OPINION
                            ______________


SCIRICA, Circuit Judge.

     Defendant Edison Joseph pled guilty under a plea agreement to
conspiracy to
possess with intent to deliver more than fifty grams of crack cocaine and
one kilogram of
heroin in violation of 21 U.S.C.   846. Joseph was sentenced to 71 months
imprisonment followed by five years' supervised release. He was also
fined $650 and
ordered to pay a $100 special assessment.
     The issue on appeal is whether the District Court abused its
discretion in only
departing downward from the 120 month mandatory minimum sentence and the
87 to
108 month guideline imprisonment range to a sentence of 71 months based on
defendant's substantial assistance.
                                I.
     Edison Joseph sold cocaine and heroin for a drug trafficking
operation headed by
Fernando Candelario and Mario Luis Gonzalez. On February 7, 2000, Joseph
sold seven
grams of crack cocaine and 13 packets of heroin to an undercover officer
for $430.
Joseph was arrested on March 9, 2000. In post arrest statements, Joseph
admitted to
making drug sales from January to March of 2000. A co-defendant, Gabriel
Silva
Rosario, admitted to selling drugs with Joseph three or four times.
     The District Court adopted the facts and sentencing guidelines in the
Presentence
Report, which set an initial offense level of 29 and placed Joseph within
criminal history
category I. Joseph's initial sentence guideline range was 87 to 108
months. But the
offense carries a statutory mandatory minimum sentence of 120 months. The
District
Court departed downward under U.S.S.G.   5K1.1 and 18 U.S.C.   3553(e).
(Substantial assistance). Joseph's adjusted offense level was 25 and the
applicable
sentence range was 57 to 71 months imprisonment. The District Court
sentenced Joseph
to 71 months imprisonment. Joseph contends the District Court should have
departed
even further based on his "minimal or minor" role in the conspiracy.
                               II.
     We cannot review a District Court's discretionary denial of a
downward departure
under the sentencing guidelines. United States v. Denardi, 892 F.2d 269
(3d Cir. 1989).
Nor do we review the extent of the downward departure. On errors of law
we have
plenary review. United States v. Torres, 251 F.3d 138, 145 (3d Cir.
2001). Although
Joseph alleges legal error, we see no merit to his contention. The
District Court
exercised its discretion in not considering further departure at
sentencing, despite
Joseph's failure to object to the presentence report.
     The District Court adopted the factual findings and the guideline
application in
the presentence report. The District Court was only required to explain
why it was
imposing a sentence below the guideline range. 18 U.S.C.    3553(c). See
also Torres,
251 F.3d at 145 ("[18 U.S.C.   3553(c)] requires a sentencing judge to
justify explicitly
his or her decision to depart."). The District Court granted the downward
departure and
safety valve departure because of the government's 5K1 motion. As noted,
we lack
appellate jurisdiction to review the extent of the downward departure
under U.S.S.G.
3B1.2.
                               III.
     For the foregoing reasons, we will dismiss the appeal for lack of
appellate
jurisdiction.

TO THE CLERK OF COURT:
     Please file the foregoing memorandum opinion.



                                       /s/   Anthony J. Scirica
                                   Circuit Judge
