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


9-16-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3896




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Recommended Citation
"USA v. Merced" (2003). 2003 Decisions. Paper 270.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/270


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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                    No: 02-3896
                                  _______________

                           UNITED STATES OF AMERICA


                                           v.

                                 RICHARD MERCED

                                           Appellant




                    Appeal from the United States District Court
                             for the District of New Jersey
                      (D.C. Criminal Action No.01-cr-00421-1
                   District Judge: Honorable Katharine S. Hayden


                       Submitted Under Third Circuit LAR 34.1(a)
                                   on June 2, 2003

              Before: ALITO, ROTH and STAPLETON, Circuit Judges


                          (Opinion filed September 16, 2003)


                                    OPINION


ROTH, Circuit Judge;

      On June 21, 2001, Richard Merced and Carmen Burgos flew from Lima, Peru, to
Newark, New Jersey. On arrival, during a routine examination by the United States

Custom Service, Merced and Burgos claimed that they were married and traveling on

vacation. They said that they had packed their own suitcases and the contents of the four

suitcases belonged to them. The Customs Service examined the suitcases and discovered

that all four had false metal bottoms. Each suitcase contained about 500 grams of

cocaine. In total, the luggage contained 1,833.7 grams of cocaine. Merced later admitted

that he intended to deliver the cocaine to a person in New York City in exchange for

$4,000.

       On June 26, Merced and Burgos were indicted in federal court on three counts:

One count of conspiracy to import more than 500 grams of cocaine, in violation of 21

U.S.C. § 963 (2001) and two counts charging Merced and Burgos, individually, with

importing more than 500 grams of cocaine, in violation of 21 U.S.C. § 952 (a) (2001).

       On February 5, 2002, Merced pled guilty to the conspiracy count. The pre-

sentence report recommended a total offense level of 31 and a criminal history category

of VI, which corresponds to a guidelines sentencing range of 188 to 235 months. In

calculating this sentencing range, the Probation Office determined that Merced was a

career offender, pursuant to U.S.S.G. § 4B1.1 (2001) because the offense of conviction

involved a controlled substance, Merced was 18 years or older at the time of its

commission, and he had been convicted of two crimes of violence, one conviction for

armed robbery with sexual assault and one for sexual assault.



                                            2
       Before sentencing, Merced moved for a downward departure based on the

conditions of his pre-trial confinement and on his allegation that the guidelines sentencing

range overstated the relative seriousness of his current offense, particularly in light of the

lesser sentence of imprisonment received by Burgos. The District Court denied the

motion and sentenced Merced to 188 months of imprisonment and five years of

supervised release. Merced appealed.

       We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a)(1-2). While we lack jurisdiction to hear an appeal from a district

court’s failure to exercise its discretion to depart downward, we have jurisdiction over an

appeal where the district court failed to depart downward because it believed it lack legal

authority to consider such a departure. See United States v. Georgiadis, 933 F.2d 1219,

1222 (3d Cir. 1991). We exercise plenary review over allegations that a district court

imposed a sentence based on a mistake of law or an incorrect application of the

Sentencing Guidelines. United States v. Torres, 251 F.3d 138, 145 (3d Cir. 2001); United

States v. Higgins, 967 F.2d 841, 844 (3d Cir. 1992).

       Merced claims on appeal that the District Court erred in denying the motion to

depart because Merced’s criminal history category overstated his past criminal conduct

under U.S.S.G. § 4A1.3. Contrary to this contention, however, M erced did not argue in

the District Court that his criminal history overstated his past criminal conduct. The

record reflects that although Merced cited U.S.S.G. § 4A1.3, he claimed that he deserved



                                              3
a downward departure based on the disparity between Burgos’s and his sentencing ranges.

He did not argue in the District Court that his criminal history category over-stated his

past criminal conduct.

         The District Court properly refused to depart on the basis that there was a disparity

between Merced’s and Burgos’s sentences. See United States v. Higgins, 967 F.2d 841,

845 (3d Cir. 1992) (holding that disparity of sentences between co-defendants is improper

basis for downward departure); United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir.

1991). Accordingly, we find that the District Court did not err in denying Merced’s

departure motion based on sentencing disparity between Merced’s and Burgos’s

sentences.

         Because Merced did not raise in the District Court the objection that his criminal

history category over-stated his past criminal conduct and, indeed, did not proffer any

evidence that would support such a conclusion, the District Court was not authorized to

depart on that basis. Moreover, in view of the nature of Merced’s prior convictions, we

find no basis for asserting such a claim concerning his criminal history in the first place.

         For the above reasons, we will affirm the judgment of sentence of the District

Court.




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TO THE CLERK:

    Please file the foregoing Opinion.




                                         By the Court,




                                           /s/ Jane R. Roth
                                             Circuit Judge




                                           5
