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


3-14-2002

USA v. Parra
Precedential or Non-Precedential:

Docket 1-2606




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Recommended Citation
"USA v. Parra" (2002). 2002 Decisions. Paper 178.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/178


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                              NOT PRECEDENTIAL

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           No. 01-2606
                      _____________________

                    UNITED STATES OF AMERICA

                                   v.

                  CLAUDIA P. PARRA, Appellant
               ____________________________________

         On Appeal From the United States District Court
                  For the District of New Jersey
                      (D.C. No. 00-cr-00613)
          District Judge: Honorable Stephen M. Orlofsky
             _______________________________________

            Submitted Under Third Circuit LAR 34.1(a)
                          March 7, 2002
         Before: BECKER, Chief Judge, ALITO and RENDELL,
                         Circuit Judges.

                     (Filed: March 14, 2002)
                     _______________________

                             OPINION
                     _______________________

BECKER, Chief Judge.
     This is an appeal by defendant Claudia Patricia Parra from the
judgment of the
District Court following a bargained guilty plea. The detailed plea
bargain agreement
contained a number of provisions relative to sentencing. It did not,
however, cover the
question of a possible downward departure on the basis of coercion and
duress, which is
the sole issue on appeal.
     We do not gainsay that Ms. Parra makes a plaintive and sympathetic
case for such
a downward adjustment, as set forth even in the government's version of
Parra's tale, set
forth in the margin. On the other hand there are the following
countervailing
considerations: (1) Parra failed to report any of the offense conduct to
anyone or seek
help; (2) the Court had to consider her motivation for the offense
$5,000; (3) she tried to
evade being detected when she arrived in Newark; and (4) although she now
submitted
that the pellets were inserted into her, at the plea hearing she answered
"Yes" when asked
whether she "ingested" the pellets. At all events, the Court explicitly
recognized that it
had the "authority to depart downwardly under Section 5K2.12, for coercion
and duress."
(A-48). The Court explained, however, that it
                    decline[d] to do so in this case, because in my view
the
          defendant has not carried her burden, demonstrating by a
          preponderance of the evidence that she is entitled to such a
          departure in this case.

(A48).
     Our jurisprudence is clear that we lack jurisdiction to review a
district court's
discretionary decision not to depart from the applicable guideline range
where the court
recognizes it has the authority to depart, but determines that a departure
is not warranted.
See, e.g., United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991)
("If we
determine the district court was aware of its authority to depart from the
Guidelines, and
chose not to, we are without power to inquire further into the merits of
its refusal to grant
[defendant's] request."); 18 U.S.C.   3742(a), which grants the defendant
the right to
appeal his or her sentence, "simply does not authorize such an appeal."
United States v.
Denardi, 892 F.2d 269, 271-72 (3d Cir. 1989).
     Parra argues that the District Court misapplied the duress Guideline,
U.S.S.G.
  5K2.12. However, we find no indication that the District Court
misapplied or failed to
understand the duress Guideline. Rather, having developed an ample record
and surveyed
the situation, the District Court exercised its discretion not to depart.
As noted above, that
decision is not reviewable on appeal. The judgment of the District Court
will be
affirmed.
                  ___________________________
TO THE CLERK:

     Please file the foregoing Opinion.

                             BY THE COURT:



                                      /s/ Edward R. Becker
                             Chief Judge
