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


3-24-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-2824




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Recommended Citation
"USA v. Cruz" (2003). 2003 Decisions. Paper 725.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/725


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                                                                     NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT


                                           No. 02-2824


                                UNITED STATES OF AMERICA

                                                 v.

                                         ELADIO CRUZ
                                             a/k/a
                                            LADO

                                            Eladio Cruz,
                                                                     Appellant


                          On Appeal from the United States District Court
                                    for the District of New Jersey
                       District Judge: Honorable John W. Bissell, Chief Judge
                                   (D.C. Crim. No. 01-00292-1)


                                    Argued February 28, 2003

                BEFORE: SCIRICA, GREENBERG, and GIBSON*, Circuit Judges

                                      (Filed: March 21, 2003)


                                                 Esther Salas (argued)
                                                 Lisa M. Mack


*Honorable John R. Gibson, Senior Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.


                                                 Federal Public Defender
                                                      972 Broad Street
                                                      Newark, NJ 07102

                                                          Attorneys for Appellant

                                                      Christopher J. Christie
                                                      United States Attorney
                                                      George S. Leone
                                                      Chief, Appeals Division
                                                      Sabrina G. Comizzoli (argued)
                                                      Assistant United States Attorney
                                                      970 Broad Street
                                                      Newark, NJ 07102-2535

                                                          Attorneys for Appellee


                                       OPINION OF THE COURT


GREENBERG, Circuit Judge.

          Eladio Cruz appeals from a judgment of conviction and sentence entered June 28,

2002, on his plea of guilty to an indictment charging him with conspiracy to distribute

more than 50 grams of crack cocaine. The district court determined that his total offense

level was 34 which with his criminal history category of VII yielded a sentencing range of

262 to 327 months. The court sentenced him to a 262-month custodial term to be

followed by a five-year term of supervised release.

          Cruz appeals, contending that “the [district] court erred in denying [his] downward

departure motion for over-statement of criminal history because it failed to employ the

applicable analytical framework, instead relying upon a skewed view of plea agreement

stipulations and its assignment to [him] of responsibility for the sins of his son.” Br. at 11.

                                                      2
His son is a co-defendant in this case. The government answers that we lack jurisdiction

because the district court explicitly recognized that it had the authority to depart but

declined to do so.

          We agree with the government and thus conclude that we do not have jurisdiction.

See United States v. McQuilkin, 97 F.3d 723, 729-30 (3d Cir. 1996). Consequently, we

will dismiss this appeal.




TO THE CLERK:

          Please file the foregoing not precedential opinion.




                                                        /s Morton I. Greenberg
                                                       Circuit Judge




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