                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-1742




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"USA v. Monroe" (2003). 2003 Decisions. Paper 617.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/617


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                       No. 02-1742




                          UNITED STATES OF AMERICA

                                           v.

                              GREGORY L. MONROE,
                                             Appellant




                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           D.C. Criminal No. 99-cr-00239-2
                            (Honorable Thomas I. Vanaskie)




                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 27, 2003

           Before: SCIRICA, GREENBERG and GIBSON*, Circuit Judges

                              (Filed    April 28, 2003   )




   *The Honorable John R. Gibson, United States Circuit Judge for the Eighth Judicial
Circuit, sitting by designation.
                               OPINION OF THE COURT


SCIRICA, Circuit Judge.

                                            I.

       Gregory Monroe appeals the two level downward departure he received under the

United States Sentencing Guidelines, arguing that the District Court should have granted

him a greater downward departure.

                                            II.

       During an investigation into crack cocaine distribution in M onroe County

Pennsylvania which began in February, 1998, Monroe was involved in eight distributions

of controlled crack cocaine. While serving a sentence for state charges,1 Monroe was

served with a federal criminal complaint. On October 5, 1999, a grand jury returned a

multiple count indictment charging violations of 21 U.S.C. § 841. After negotiating a

plea agreement, Monroe entered a plea of guilty to the distribution of cocaine base (crack)

in violation of 21 U.S.C. § 841(a)(1). He also agreed to cooperate with the government

by testifying against his co-defendants. To account for his assistance, the government

requested a one level downward departure under U.S.S.G. § 5K1.1 from his guideline




   1
    On October 14, 1998, Monroe was arrested as a shooting suspect. He was charged
with aggravated assault and subsequently convicted for the shooting. On April 14, 1999,
he was sentenced to a term of not less than 10 years nor more than 20, with credit for time
served from October 14, 1998.

                                             2
range of 151 to 188 months.2    Monroe urged a further downward departure of eight

levels to make his federal sentence concurrent with his 80 month undischarged state

sentence. The District Court departed two levels and imposed a federal prison term of

130 months to run concurrently with his undischarged state sentence, followed by three

years of supervised release. This appeal followed.

                                             III.

       Under 18 U.S.C. § 3742(a), a defendant has a right to appeal his sentence only

where it: (1) was imposed in violation of law; (2) was imposed as a result of an incorrect

application of the sentencing guidelines; (3) is greater than that specified in the applicable

guideline range, or (4) was imposed when there is no applicable guideline and is plainly

unreasonable. 18 U.S.C. § 3742(a); United States v. Torres, 251 F.3d 138, 151 (3d Cir,

2001), cert. denied, 534 U.S. 936 (2001). But where a sentence is within the applicable

guideline range and was lawfully imposed, we are without jurisdiction to review the

sentence. Torres, 251 F.3d at 151-52.

       We also lack jurisdiction to review a decision not to depart from the applicable

guideline range where a district court understands it has the power to depart but declines

to do so. See United States v. Hart, 273 F.3d 363, 378 (3d Cir. 2001); United States v.




   2
    Monroe had 55 prior arrests and 39 convictions, resulting in a subtotal of 38 criminal
history points. The District Court increased this subtotal by two points under U.S.S.G. §
4A1.1(e) because the instant offense was committed within two years of Monroe’s release
from custody. Thus, Monroe was placed in Criminal History Category VI.

                                              3
Vitale, 159 F.3d 810, 816 (3d Cir. 1998). But where a district court erroneously believes

it does not have authority to reduce a sentence below the guidelines range, the sentence is

reviewable as a matter of law. United States v. Denardi, 892 F.2d 269, 271 (3d Cir.

1989). A sentence is also reviewable where the record does not make clear whether the

denial was based on an exercise of discretion or an erroneous legal interpretation. United

States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994) (explaining, “in cases such as this,

where the record does not make clear whether the district court’s denial of departure was

based on legal or discretionary grounds, we believe that the appropriate course of action

is to vacate the sentence and remand for the district court to clarify the basis for its

ruling.”).

                                              IV.

       Here, Monroe’s challenge fails to raise a proper basis for appeal. Instead, Monroe

attacks a lawfully imposed sentence, arguing that he should have received a sentence of

80 months to make his federal sentence completely concurrent with his undischarged state

sentence. In making this argument, Monroe asserts that “it appears [the District Court]

believed [it] could not make the sentence totally concurrent.” Appellant Br. at 9. Yet the

record clearly shows the District Court was aware of its ability to make the sentences

concurrent, but declined to do so. The District Court stated:

       [Y]ou are, I think, entitled to a downward departure here based upon your
       substantial assistance, and taking all of that into account, and trying to
       impose an appropriate punishment for the drug trafficking, which was very



                                               4
       serious, and you were the enforcer on that. You were brought up here as
       the enforcer, as the presentence report revealed.

               And in fact, while there’s no indication that the incident which you
       shot a person involved drugs, it certainly is consistent with you being the
       enforcer up here and protector, and that’s a very serious matter. And many
       of the sentences you’ve received in the past were on the lenient side, Mr.
       Monroe, certainly the ten to twenty years was not.

               And it’s my judgment in this case that in view of the circumstances
       that it would not be appropriate to impose a sentence as asked for by your
       attorney here.

Thus, it is clear that the District Court did not err as a matter of law, but rather exercised

its discretion in declining to impose a concurrent sentence because it “would not be

appropriate.”

                                              V.

       Accordingly, we will dismiss the appeal for lack of appellate jurisdiction.




                                               5
TO THE CLERK:

         Please file the foregoing opinion.


                                              /s/Anthony J. Scirica

                                              Circuit Judge




                                        6
                                     April 25, 2003




TO:           Marcia M. Waldron, Clerk

FROM:         Judge Scirica

RE:           United States v. Gregory L. Monroe
              No. 02-1742
              Submitted: February 27, 2003


Dear Marcy:

            Please file the attached not precedential opinion which has been cleared in
accordance with our procedure. The signed original is being delivered to your office.

                                               Sincerely,




                                               Anthony J. Scirica

AJS:sss

cc (letter only): Judge Greenberg
                  Judge Gibson
