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


7-26-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4515




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Recommended Citation
"USA v. Shabazz" (2002). 2002 Decisions. Paper 449.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/449


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                                                NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT



                            No. 01-4515



                     UNITED STATES OF AMERICA

                                v.

                          TROY SHABAZZ,
                      a/k/a "TROY ROBINSON,"
                                            Appellant

         _______________________________________________

         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                  D.C. Criminal No. 01-cr-00247
                  (Honorable Eduardo C. Robreno)



         Submitted Pursuant to Third Circuit LAR 34.1(a)
                          July 15, 2002

       Before:   SCIRICA, ALITO and FUENTES, Circuit Judges

                       (Filed: July 26, 2002)



                        OPINION OF THE COURT




SCIRICA, Circuit Judge.

     On July 16, 2001, Troy Robinson pled guilty to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. 922(g)(1). Robinson was placed in a
sentencing range of 46 to 57 months’ imprisonment under the Sentencing Guidelines.
Robinson moved for a downward departure based on a family hardship pursuant to
U.S.S.G.   5H1.6 (Family Ties and Responsibilities, and Community Ties).   The
District Court denied Robinson’s motion and sentenced him to 51 months in prison, a
$1,000 fine and a $100 special assessment. We will dismiss the appeal for lack of
jurisdiction.
                                I.
     On appeal, Robinson contends that the District Court did not consider his family
hardship when imposing sentence. He suggests we exercise plenary review.
     We disagree. If a district court imposes a sentence in violation of law, or
misapplies the Sentencing Guidelines, we exercise plenary review. See United States v.
Spiropoulos, 976 F.2d 155, 160 n.2 (3d Cir. 1992). But if a district court acknowledges
its authority to depart and decides not to do so, we lack appellate jurisdiction. See
United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996); United States v. Denardi,
892 F.2d 269, 272 (3d Cir. 1989). In this case, the District Court expressly
acknowledged it had the power to depart from the Guidelines, but determined
Robinson’s family hardship did not warrant departure. Thus, we lack jurisdiction over
this matter under 18 U.S.C. 3742. Denardi, 892 F.2d at 271-72.
                               II.
     For the foregoing reasons, we will dismiss the appeal for lack of jurisdiction.

TO THE CLERK:

          Please file the foregoing opinion.




                                     /s/ Anthony J. Scirica
                                          Circuit Judge

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                            ___________

                            No. 01-4515
                            ___________


                     UNITED STATES OF AMERICA

                                v.

                          TROY SHABAZZ,
                      a/k/a "TROY ROBINSON,"
                                            Appellant

         _______________________________________________

         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                  D.C. Criminal No. 01-cr-00247
                  (Honorable Eduardo C. Robreno)
                       ___________________


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                          July 15, 2002

       Before:   SCIRICA, ALITO and FUENTES, Circuit Judges

                              JUDGMENT

          This cause came to be considered on the record from the United States
District Court for the Eastern District of Pennsylvania and was submitted pursuant to
Third Circuit LAR 34.1(a) on July 15, 2002. On consideration whereof, it is now hereby
          ORDERED and ADJUDGED by this Court that the appeal of the judgment
of the District Court entered December 20, 2001, be, and the same is hereby dismissed
for lack of jurisdiction. All of the above in accordance with the opinion of this Court.


                               ATTEST:
                      Acting Clerk

DATED: 26 July 2002
