                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-12-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3970




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                                          NOT PRECEDENTIAL


  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 05-3970



      UNITED STATES OF AMERICA

                      v.

              CLINT WALKER,

                  Appellant.




On Appeal from the United States District Court
    for the Middle District of Pennsylvania
            (D.C. No. 03-cr-00043-3)
  District Judge: Honorable John E. Jones III



 Submitted Under Third Circuit L.A.R. 34.1(a)
                June 8, 2006

Before: AMBRO, FUENTES, and NYGAARD,
             Circuit Judges.

             (Filed July 12, 2006)
                     ____

         OPINION OF THE COURT
FUENTES, Circuit Judge.


       Defendant Clint Walker appeals his sentence of 57 months imprisonment on the

ground that the sentencing judge abused his discretion by failing to downwardly depart as

to his criminal history category. Because the District Court plainly acknowledged its

ability to depart from the sentencing guidelines and made a discretionary decision not to

do so, its decision is not reviewable by this Court. We therefore conclude that we lack

jurisdiction and dismiss the appeal.

                                   I. BACKGROUND

       Walker pled guilty to possession with intent to distribute cocaine pursuant to a plea

agreement with the United States. The presentence report calculated a guideline range of

92-115 months imprisonment based on an offense level of 23 and a criminal history

category of VI. The District Court accepted the Government’s request for a five level

downward departure from the guidelines to a range of 57-71 months. Walker requested a

further criminal history downward departure, arguing that the Government’s request

exaggerated the seriousness of his past criminal conduct. The District Court denied this

request and Walker was sentenced to 57 months in prison.

       Walker does not challenge the District Court’s decision to downwardly depart by

five levels. He does argue, however, that the Court misapplied the sentencing guidelines

by not properly taking into account that the sentence should reflect a lower criminal

history category. Walker asserts that most of the criminal history points were assigned


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based on a period of less than 60 days of criminal conduct over 15 years ago when he was

under the influence of crack cocaine. He notes that if this period were left out of the

calculation, his criminal history would be category II rather than category VI. As a

consequence, Walker requests a review of the sentence by this Court pursuant to 18

U.S.C. § 3742(a)(2), asserting an incorrect application of the sentencing guidelines.1

                                    II. DISCUSSION

              This Court lacks jurisdiction to review a district court’s discretionary

determination not to further downwardly depart from the sentencing guidelines. See

United States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990)(“The circumstances in which a

defendant may appeal a sentence are set forth in 18 U.S.C. § 3742(a) and do not include

situations in which a defendant is seeking an enhanced downward departure.”); United

States v. Denardi, 892 F.2d 269, 271-72 (3d Cir. 1989). Nothing in United States v.

Booker, 543 U.S. 220 (2005), altered this principle. United States v. Cooper, 437 F.3d

324, 332-333 (3d Cir. 2006).

       As long as the District Court understood the advisory nature of the guidelines and

its authority to grant a downward departure, the extent to which it downwardly departed

is not reviewable by this Court unless there is an allegation of a legal error. See United

States v. Cooper, 437 F. 3d at 332-33. The record of the sentencing hearing reflects the



       1
       The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. As this is
an appeal from a final decision of the District Court, we have jurisdiction pursuant to 28
U.S.C. § 1291.

                                             3
District Court’s proper consideration and understanding of its authority. Acknowledging

its ability to downwardly depart, the District Court rejected Walker’s claim, also taking

into account the other § 3553(a) factors and the serious nature of the crime. (Appendix to

Appellant’s Brief at 42).

       We cannot review the District Court’s discretionary determination that a further

downward departure requested by Walker was not warranted, and we therefore dismiss

the appeal.




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