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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ NO. 99-5070

__________ UNITED STATES OF AMERICA

v. OMAR OROZCO, App ellant

_________ On Appeal from the United States District C ourt for the District of New Jersey (D.C. Criminal No. 98-cr-00077) District Judge: Honorable Joseph E. Iren as

__________ Submitted Under Third Circuit LAR 34.1(a ) January 16, 2002 Before: RENDELL, FUENTES and MAGILL*, Circuit Judges (Filed: January 17, 2002)

__________ MEMORANDUM OPINION

__________
RENDELL, Circuit Judge.

___________________ *Honorable Frank J. Magill, United States Cir cuit Judge for the Eighth Circuit, sitting by designation. Orozco appeals the District Court sentencing o rder, contending that the District Court abused its discretion in labeling him as a "l eader or organizer," and erred in not granting a downward departure for his rehabilitativ e efforts. The first issue, namely as to whether Orozco s hould have been classified as a "leader or organizer", was noted in Orozco's summar y of his argument, but never discussed in his brief. Accordingly, this argument has been waived. See Linder &Assoc., Inc. v. Aetna Casualty & Surety Co., 166 F. 3d 547, 552, n. 5 (3rd

Cir. 1999). See also Merkle v. Upper Dublin School Dist., 211 F.3d 782, 791 ( 3rd Cir. 2000). With respect to Orozco's second argument, name ly that a downward departure should have been granted based upon his rehabilitat ive efforts, we conclude that we lack jurisdiction to review this discretionary ruling on the part of the District Court. It is clear from the record that the District Court recognized that it had the authority to depart based upon Orozco's post offense rehabilitation, but that it concluded that the conduct was not so extraordinary as to take the case out of the "he artland" so as to justify a downward departure. Instead, the District Court exercised i ts discretion and imposed a sentence at the bottom of the applicable guideline range. Acco rdingly, we lack jurisdiction to review the District Court's discretionary refusal to depar t in this case. See United States v. Price, 13 F.3d 711, 736 (3d Cir. 1994). We will accordingly affirm the District Court' s ruling.

_________________________TO THE CLERK OF COURT:

Please file the foregoing memorandum opinion.

/s/ Marjor ie O. Rendell Circuit Judge