                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4072




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"USA v. McDowell" (2007). 2007 Decisions. Paper 1559.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1559


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                                                       NOT PRECEDENTIAL


              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                             No. 05-4072


                  UNITED STATES OF AMERICA,


                                  v.

                      JAMES E. MCDOWELL,

                              Appellant.



            On Appeal from the United States District Court
                      for the District of Delaware
                             (No. 04-cr-48)
            District Judge: Honorable Joseph J. Farnan, Jr.



             Submitted Under Third Circuit LAR 34.1(a),
                         January 23, 2007


Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges

                      (Filed: February 28, 2007)
                                            _____

                                   OPINION OF THE COURT



FUENTES, Circuit Judge.

       The sole issue raised in this appeal is whether the District Court erred in refusing

to grant a downward departure in imposing sentence. For the reasons set forth below, we

will dismiss the appeal for lack of jurisdiction.

       Appellant James McDowell pleaded guilty to one count of interstate transportation

of child pornography in violation of 18 U.S.C. § 2252A(a)(1). On August 2, 2005, the

District Court sentenced McDowell to 87 months’ imprisonment, at the low end of a

guideline range of 87 to 108 months. In imposing sentence, the District Court rejected

McDowell’s motion for a downward departure for post-offense rehabilitation, diminished

capacity, and minimal threat to society. As the District Court stated to McDowell at the

sentencing hearing:

       I have, in child pornography cases, tried to always determine whether the
       defendant was viewing child pornography as opposed to . . . reaching out to
       children or engaging children in addition to viewing . . . Where there’s been
       a reaching out, I, like the other judges of the court, have sentenced within
       the guidelines. The facts of your case indicate that you reached out . . . The
       presentence report sets forth in great detail what it was you were engaged
       in. So I can’t find a reason to exercise my discretion and sentence you
       outside of the guideline.

(App. at 52.)

       The foregoing quote makes plain that the District Court was well aware of its

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discretionary authority to grant a downward departure, but simply chose not to based on

the circumstances presented. “It is well-established in this Court that we lack jurisdiction

to review the merits of a district court’s discretionary decision to refuse a downward

departure under the Sentencing Guidelines once we determine that the District Court

properly understood its authority to grant a departure.” United States v. Minutoli, 374

F.3d 236, 239 (3d Cir. 2004); see also United States v. Cooper, 437 F.3d 324, 332-33 (3d

Cir. 2006) (holding that limitations on appellate review of district court’s discretionary

decision to deny downward departure still apply post-Booker).

       Accordingly, we will dismiss the appeal for lack of jurisdiction.




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