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


4-4-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-2538




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                                                                            NOT PRECEDENTIAL

                              UNITED STATES COURT OF APPEALS
                                   FOR THE THIRD CIRCUIT

                                               No: 02-2538

                                   UNITED STATES OF AMERICA

                                                       v.

                                            SIMIAN PAULK,

                                                     Appellant


                            On Appeal from the United States District Court
                                   For the District of New Jersey
                                     (D.C. No. 01-cr-373-12 )
                           The Honorable Jerome B. Simandle, District Judge


                               Submitted Under Third Circuit LAR 34.1 (a)
                                            April 1, 2003

                        Before: MCKEE, SMITH, and COWEN, Circuit Judges

                                          (Filed: April 4, 2003)

                                       ______________________

                                                 OPINION

                                       ______________________

SMITH, Circuit Judge:

         In this appeal, Appellant Simian Paulk argues that his criminal history category of

VI significantly over-represents the seriousness of his criminal history, and that the

District Court abused its discretion under the United States Sentencing Guidelines
(hereinafter “the Guidelines”) when it denied his motion for downward departure pursuant

to U.S.S.G. § 4A1.3 (2001) and sentenced him to 262 months of imprisonment. Because

the record makes clear that the District Court was aware of its authority under the

Guidelines to depart downward, but exercised its discretion not to do so, we will dismiss

Paulk’s appeal for lack of jurisdiction.

         Paulk pleaded guilty to conspiracy to distribute and possess with intent to distribute

more than 50 grams of cocaine base.1 The District Court determined that Paulk was a

career offender pursuant to U.S.S.G. § 4B1.1, because he had two prior convictions for

controlled substance offenses, and the instant offense was also a controlled substance

offense. Paulk contends that his designation as a “career offender” overstates the severity

of his criminal history, and that the District Court should have departed downward. To

support his view, he cites United States v. Shoupe, 35 F.3d 835, 836 (3d Cir. 1994), where

we held that a sentencing court may depart downward on both a defendant’s offense level

and criminal history designation if the defendant’s “criminal offender” status overstates the

severity of his criminal history and likelihood of recidivism. As we recognized in United

States v. McQuilkin, 97 F.3d 723 (3d Cir. 1996), the Shoupe decision was grounded in

U.S.S.G. § 4A1.3, a policy statement which provides: “If reliable information indicates that




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    Paulk and eleven co-defendants pled guilty to knowingly and intentionally conspiring and
agreeing with one another and with others to distribute and to possess with intent to
distribute controlled substances, contrary to 21 U.S.C. § 841(a)(1), in violation of 21
U.S.C. § 846. Paulk himself pled guilty to conspiracy to distribute and possess with intent
to distribute at least 150 grams but less than 500 grams of cocaine base.

                                                     2
the criminal history category does not adequately reflect the seriousness of the defendant’s

past criminal conduct or the likelihood that the defendant will commit other crimes, the

court may consider imposing a sentence departing from the otherwise applicable guidelines

range.” U.S.S.G. § 4A1.3. The policy statement and Shoupe simply indicate that a district

court may, but is not required to, grant a departure under such circumstances.

         This Court lacks jurisdiction to entertain Paulk’s appeal because the District Court

properly exercised its discretion to deny Paulk’s motion for a downward departure. Our

jurisdiction to consider Paulk’s argument that he is entitled to a downward departure based

on over-representation of his criminal history category depends on the basis for the

District Court’s ruling. United States v. Stevens, 223 F.3d 239, 247 (3d Cir. 2000);

United States v. Denardi, 892 F.2d 269, 271-72 (3d Cir. 1989). Where a district court’s

ruling is based on the court’s belief that a departure on the grounds proffered by the

appellant is largely impermissible, we have jurisdiction “to determine whether the district

court’s understanding of the law was correct.” Stevens, 223 F.3d at 247 (citing United

States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994)). We lack jurisdiction to review a

refusal to depart downward when a district court, knowing it may do so, nonetheless

determines that departure is not warranted. Stevens, 223 F.3d at 247; McQuilkin, 97 F.3d

at 729l; Denardi, 892 F.2d at 272.

        The District Court made clear that it understood its legal authority to depart

downward under § 4A1.3, but determined that departure was not warranted. The Court

stated that “I recognize that I have the ability to depart downward under § 4A1.3 if Category

                                                     3
VI overstates the defendant’s criminal history,” but declined to depart given that Paulk was a

“career criminal drug dealer” who “lacks the ability to conform his behavior to law and

[whose] chance of recidivism is great.” This was a proper exercise of discretion and we

lack jurisdiction to review Paulk’s appeal.

        For the foregoing reasons, the judgment of the District Court will be affirmed.


TO THE CLERK:
     Please file the foregoing Opinion.


                                                           /s/ D. Brooks Smith
                                                             Circuit Judge




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