2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-17-2002

USA v. Orozco

Precedential or Non-Precedential:

Docket 99-5070

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Recommended Citation

"USA v. Orozco" (2002). 2002 Decisions. Paper 21.

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 NOT-PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 __________ 

 

 NO. 99-5070 

 __________ 

 

 UNITED STATES OF AMERICA 

 v. 

 OMAR OROZCO, 

 Appellant 

 _________ 

 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Criminal No. 98-cr-00077) 

 District Judge: Honorable Joseph E. Irenas 

 __________ 

 

 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 Circuit Judge for the 

Eighth Circuit, 

sitting by designation. 

 Orozco appeals the District Court sentencing order, contending that 

the District 

Court abused its discretion in labeling him as a "leader or organizer," 

and erred in not 

granting a downward departure for his rehabilitative efforts. 

 The first issue, namely as to whether Orozco should have been 

classified as a 

"leader or organizer", was noted in Orozco's summary 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, namely that a downward 

departure 

should have been granted based upon his rehabilitative 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 "heartland" so as to 

justify a downward 

departure. Instead, the District Court exercised its discretion and 

imposed a sentence at 

the bottom of the applicable guideline range. Accordingly, we lack 

jurisdiction to review 

the District Court's discretionary refusal to depart 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/ Marjorie O. Rendell 

 Circuit Judge