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


1-30-2002

USA v. Allen
Precedential or Non-Precedential:

Docket 1-1908




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Recommended Citation
"USA v. Allen" (2002). 2002 Decisions. Paper 70.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/70


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                                                NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT



                          No. 01-1908



                    UNITED STATES OF AMERICA

                               v.

                         DION M. ALLEN,
                        a/k/a "Fathead"

                                    Appellant



    ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW JERSEY

                 (Dist. Court No. 00-cr-00495)
        District Court Judge: Honorable Anne E. Thompson



           Submitted Under Third Circuit LAR 34.1(a)
                        January 17, 2002

Before: ALITO and ROTH, Circuit Judges, and SCHWARZER, Senior District
Judge

               (Opinion Filed: January 30, 2002)



                MEMORANDUM OPINION OF THE COURT



PER CURIAM:
          Because we write for the parties only, the background of the
case need not
be set out. We reject the appellant's argument that this Court has
jurisdiction to review
this appeal, which involves the District Court's discretionary refusal to
grant a downward
departure under U.S.S.G.   4A1.3. We therefore dismiss the appeal.
          Although this Court is without jurisdiction to review the
District Court's
discretionary refusal to grant a downward departure from the applicable
Sentencing
Guidelines range, this Court does have jurisdiction over an appeal from a
District Court's
refusal to depart downward when it believes that it lacks the authority to
do so. United
States v. Higgins, 967 F.2d 841, 844 (3d Cir. 1992).
           In this case, the defendant asked for a downward departure on a
ground that
is well recognized in the case law, namely, that his criminal history
overstated the
severity of his past offenses. Both parties presented relevant case law
to the District
Court supporting its discretionary authority to grant a downward
departure, if it found
such a departure warranted in this case. The government conceded that the
District Court
had the power to grant the downward departure, while arguing that it
should not do so
given the facts of this case. The District Court ultimately agreed with
the government's
position. Although the District Court said that it saw no "basis" for
granting the
downward departure, we interpret that statement to mean that the facts
here did not
warrant the downward departure under prior precedent. This interpretation
is bolstered
by the District Court's statement that it could see no basis for the
departure "in this case."
Under this reasonable interpretation, the District Court's conclusion
would be an
unreviewable discretionary refusal to depart.
           We have considered all of the defendant's arguments and see no
basis for
finding jurisdiction over this appeal. Therefore, we dismiss the appeal
for lack of
jurisdiction.

TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.
