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


5-20-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-2391




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Recommended Citation
"USA v. Rick" (2003). 2003 Decisions. Paper 547.
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                                                NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT




                    No: 02-2391
                  _______________


          UNITED STATES OF AMERICA

                          v.

                  ROXANNE RICK,

                                    Appellant




     Appeal from the United States District Court
       for the Western District of Pennsylvania
       (D.C. Criminal Action No. 00-cr-00184)
    District Judge: Honorable William L. Standish


      Submitted under Third Circuit LAR 34.1(a)
                 on March 7, 2003

Before: ROTH, BARRY and FUENTES, Circuit Judges


 (Opinion filed        May 19, 2003                 )
                                       OPINION



ROTH, Circuit Judge:

       Roxanne Rick pled guilty to one count of conspiring to distribute Schedule II and

III controlled substances in violation of 21 U.S.C. § 846 and to two counts of distribution

of various Schedule II and III controlled substances in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(C) and 841(b)(1)(D). Rick also accepted responsibility for four

other counts of distribution. In the plea agreement, the parties agreed that the quantity of

Schedule II and III drugs attributable to Rick resulted in a combined marijuana equivalent

of 685.5 kilograms. The parties also agreed Rick’s offense level should be increased by

two for Rick’s abuse of her position. The government agreed to a three-level reduction in

the offense level for Rick’s acceptance of responsibility. Rick moved for a downward

departure on the grounds of diminished capacity, coercion and duress (later withdrawn),

extraordinary post-offense rehabilitation efforts, extraordinary family responsibilities, and

a combination of these factors. The District Court was not persuaded that Rick was

entitled to a downward departure on any one of these grounds but nevertheless

determined that, in combination, the grounds urged for departure warranted a downward

departure of two levels. Rick was sentenced to 57 months imprisonment.

       Rick appeals on two grounds: (1) the District Court erred in denying a downward

departure for Rick’s post-offense rehabilitation and (2) the District Court erred in denying



                                              2
a downward departure for Rick’s family responsibilities under U.S.S.G. § 5H1.6.

         We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a district

court’s decision concerning a departure from the Sentencing Guidelines for an abuse of

discretion. See e.g. United States v. Abuhouran, 161 F. 3d 206, 209 (3d Cir. 1998) citing

United States v. Sally, 116 F. 3d 76, 78 (3d Cir. 1997). However, “we lack jurisdiction to

review a refusal to depart downward when the district court, knowing it may do so,

nonetheless determines that departure is not warranted.” United States v. McQuilkin, 97

F. 3d 723, 729 (3d Cir. 1996) citing United States v. Denardi, 892 F. 2d 269, 272 (3d Cir.

1989).

         On both grounds of appeal, Rick argues that the District Court failed to recognize

its authority to depart downward for her post-offense rehabilitation and her family

responsibilities.

         First, regarding Rick’s post-offense rehabilitation, the District Court explained that

Rick’s participating in therapy, taking prescribed medication and abstaining from the use

of alcohol for over a year were actions that were not extraordinary enough to warrant a

downward departure. The District Court made a point to explain on the record several

examples of extraordinary circumstances that would warrant a downward departure. The

District Court concluded that Rick’s case did not fit into this category. We find that the

District Court did acknowledge its discretion to depart downward but refused to do so on

the facts of this case.



                                               3
       Rick further argues that the District Court erred in stating that Rick’s post-offense

rehabilitation did not start until five weeks after her guilty plea. In finding that the

District Court exercised its discretion, we do not find that the District Court abused its

discretion in reviewing these facts.

       Second, regarding Rick’s family ties and responsibilities, the District Court

explained that it was bound by our holding in United States v. Sweeting which dictates

that a downward departure for family ties and responsibilities should be the exception

rather than the rule. Sweeting, 213 F. 3d 95,100 (3d Cir. 2000). Here, the District Court

went to great lengths to point out the factors it considered and why each factor shows that

Rick’s family ties and responsibilities are not extraordinary enough to warrant a

downward departure. We find that the District Court did acknowledge its discretion to

depart downward but refused to do so on the facts of this case.

       For the foregoing reasons, we find that we lack jurisdiction to review the District

Court’s refusals to depart from the Sentencing Guidelines.




                                               4
/s/Jane R. Roth


TO THE CLERK:

      Please file the foregoing Opinion.




                                           By the Court,




                                                           Circuit Judge




                                             5
