                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 12-2946
                                   ______________

                           UNITED STATES OF AMERICA

                                           v.

                                  KEITH CANYON,
                                            Appellant
                                   ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                          (D.C. No. 5-09-cr-00188-001)
                       District Judge: Mitchell S. Goldberg
                                 ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    July 12, 2013
                                  ______________

        Before: GREENAWAY, JR., SHWARTZ, and BARRY, Circuit Judges

                                 (Filed: July 25, 2013)
                                   ______________

                                      OPINION
                                   ______________

SHWARTZ, Circuit Judge.

      Appellant Keith Canyon pled guilty to charges arising from his participation in

two armed bank robberies and obstruction of justice as well as pleading nolo contendere
to witness tampering. The District Court imposed a sentence of 200 months. Canyon

appealed his sentence. We will dismiss the appeal for lack of jurisdiction.

                                             I.

       As we write primarily for the benefit of the parties, we recite only the essential

facts and procedural history. Canyon robbed the same bank in Reading, Pennsylvania on

November 27, 2007, and March 19, 2008. Canyon was indicted on two counts of armed

bank robbery, in violation of 18 U.S.C. § 2113(d), and two counts of using and carrying a

firearm during and in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1).

       After he was indicted, Canyon sent a letter to his former girlfriend in which he

warned her not to speak to government agents. Based on the letter, the grand jury

returned a superseding indictment that included the bank robbery and firearm charges and

added charges for obstruction of justice in violation of 18 U.S.C. § 1503(a) and witness

tampering in violation of 18 U.S.C. § 1512(b)(3). The government later moved to

dismiss the firearm count arising from one of the bank robberies. Canyon subsequently

pled guilty to the three remaining counts relating to the bank robberies and to the

obstruction of justice charge, and he pled nolo contendere to the witness tampering

charge.

       Before sentencing, Canyon filed a sentencing memorandum moving for, among

other things, a downward departure based on: (1) his mental and emotional condition,

including attention deficit hyperactivity disorder (“ADHD”) and neurological deficits,

pursuant to U.S.S.G. §§ 5H1.3 and 5K2.0; (2) his experience of childhood abuse and

                                              2
neglect, including his absent father, abusive stepfather, and experience of violence,

pursuant to U.S.S.G. §§ 5H1.3 and 5K2.0; and (3) the combination of those

circumstances. In the alternative, he sought a variance on the same grounds.

       The District Court held sentencing hearings on June 6, 2012 and July 3, 2012.

Canyon presented testimony from Eric Mercer, a social worker and “mitigation

specialist,” and Dr. Kirk Heilbrun, an expert psychologist. Based on his interviews with

Canyon and Canyon‟s relatives, Mr. Mercer described Canyon‟s underprivileged

background and difficult childhood. Dr. Heilbrun testified to Canyon‟s low cognitive

functioning, hostility, paranoid ideation, and impulse control difficulties, and

recommended psychotherapeutic intervention and possibly medication. The government

presented the testimony of the assistant manager of the bank that Canyon had twice

robbed and Canyon‟s accomplice. Canyon also testified. The Court found that Canyon‟s

offense level was 301 and he had a criminal history category of IV, which resulted in an

advisory guideline range of 219 to 252 months.

       Canyon‟s counsel then simultaneously argued his motion for a departure or a

variance, noting “I think we can all acknowledge that something could be a variance or

could be a departure and the arguments would be the same.” App. 234. After the

government responded to Canyon‟s arguments, the District Court denied the departure

motion but granted a downward variance of 19 months, and imposed a sentence of 200

months.

       1
         The District Court found that Canyon had not accepted responsibility for his
crimes and therefore was not entitled to a two-point reduction in the guidelines
calculation.
                                              3
       Defendant now appeals his sentence, arguing that the District Court “erred as a

matter of law in effectively concluding that it lacked authority to depart downward,”

Appellant Br. 21, and therefore “failed to conduct the appropriate discretionary review of

the evidence.” Id. at 23, 25. He contends that the Court should have granted a downward

departure based on: (1) his “extraordinary mental and emotional conditions,” including

his ADHD, neurological deficits caused by traumatic brain injury, and the exacerbating

effects of the physical abuse and neglect he suffered as a child, id. at 23-25; and (2) the

“presence of extraordinary childhood neglect and abuse,” id. at 25-28.

                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. Our jurisdiction

“depends on the basis for the district court‟s ruling.” United States v. Stevens, 223 F.3d

239, 247 (3d Cir. 2000). If we determine that the Court‟s denial of the departure motion

was discretionary, we will dismiss the appeal for lack of jurisdiction because “we are not

at liberty to review a discretionary denial.” United States v. Lofink, 564 F.3d 232, 240

(3d Cir. 2009); see also United States v. Jackson, 467 F.3d 834, 839 (3d Cir. 2006) (“[A]s

it was pre-Booker, courts of appeals post-Booker, have no authority to review

discretionary denials of departure motions in calculating sentencing ranges.”).2 Thus, we

must first determine whether the Court denied the motion based on its exercise of




       2
         We necessarily exercise de novo review of an argument that we lack appellate
jurisdiction. Montanez v. Thompson, 603 F.3d 243, 248 (3d Cir. 2010).
                                              4
discretion, or if instead the Court believed the law barred it from granting the motion.

Lofink, 564 F.3d at 240. 3

                                              III.

       We examine the entire record, not just the court‟s words, to determine if the

sentencing court was exercising its discretion when it denied the motion for departure.

Jackson, 467 F.3d at 839. In this case, while the District Court did not expressly say so,

the record shows that the District Court‟s denial of the downward departure motion was

the result of its exercise of discretion. See id. at 840 (We “infer meaning from the

District Court‟s actions in [the] circumstance.”). First, “[t]here is nothing . . . to indicate

that the Court was acting under the mistaken belief that it lacked the discretion to reduce

the [offense level] under the evidence before it.” United States v. Jones, 566 F.3d 353,

366 (3d Cir. 2009) (internal quotation marks omitted). Second, the Court stated its

decision on departure in discretionary—not compulsory—terms: “And I have certainly

taken into consideration the Guidelines, the variances and departures. I‟m not going to

grant a departure. Those [motions] are denied.” App. 248. Third, the Court‟s actions

reflect its awareness of its discretionary authority. The Court heard extensive testimony

on the subject matter of the motion, thoroughly analyzed the evidence relevant to a

departure and a variance, recognized that both were sought, and concluded that a




       3
         A departure is “the altering of a Guidelines range . . . based on reasons provided
by the Guidelines themselves.” Lofink, 564 F.3d at 238 n.14 (internal citation omitted).
By contrast, a divergence from the final Guidelines range based on the factors listed in
section 3553(a) is called a “variance.” Id.
                                               5
downward departure from the advisory guidelines was not appropriate, but that a variance

from the advisory guideline sentence based upon section 3553(a) was warranted.

       Fourth, the parties informed the District Court of its authority to depart. See

Jackson, 467 F.3d at 840 (holding that when the Government implicitly recognized the

Judge‟s discretion by arguing that a defendant had not shown extraordinary acceptance of

responsibility, “[t]his was enough for the Judge to have recognized the possibility of a

departure in calculating the Guidelines range on the basis of [the defendant‟s] acceptance

of responsibility.”); cf. United States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994)

(“Since . . . the government apparently acknowledged at the time of sentencing[ ] that a

downward departure for „diminished capacity‟ is permissible under some circumstances,

it seems quite likely that the district court‟s refusal to depart on this ground was

discretionary.”). During the sentencing hearing, defense counsel twice expressly

discussed the Court‟s discretion under the Sentencing Guidelines.4 Defendant‟s

sentencing memorandum also clearly stated that the Court had discretion to depart

downward. Implicitly acknowledging the Court‟s discretion to depart, the Government

contended that the factors Canyon argued warranted a departure in fact demonstrated that

“Mr. Canyon‟s prospects for [rehabilitation in] the future are, indeed, dim,” and therefore

a Guideline sentence was appropriate. App. 242. Cf. Lofink, 564 F.3d at 240 (vacating a

sentence where the court could not infer from the record whether the district court‟s

       4
        Canyon stated that the District Court was “permitted to do anything under the
Guidelines. The Guidelines are now advisory . . . .” App. 204. Later, Canyon
acknowledged, “Your Honor[] may say that [Canyon‟s intellectual ability] has nothing to
do with sentencing and that‟s fine. That‟s Your Honor‟s . . . discretion as the Judge.”
App. 207-08.
                                              6
denial of a departure motion was discretionary, in part because “the government . . .

argued to the District Court that [the defendant] was not eligible for [the] departure”).

       In short, we can infer that the District Court was aware of its discretionary

authority and exercised its discretion in declining to depart. Because we conclude that

the Court was aware of its authority to depart and exercised its discretion not to do so, we

are not “at liberty” to review its discretionary decision. Id.

                                             IV.

       For the foregoing reasons, we will dismiss the appeal for lack of jurisdiction.




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