2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-19-2004

USA v. D'Angelico

Precedential or Non-Precedential: Precedential

Docket No. 03-3537

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Recommended Citation

"USA v. D'Angelico" (2004). 2004 Decisions. Paper 436.

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PRECEDENTIAL

IN THE UNITED STATES COURT OF 

APPEALS FOR THE THIRD CIRCUIT

_______________

No. 03-3537

________________

UNITED STATES OF AMERICA

v.

 ANTHONY D’ANGELICO, 

 

Appellant

_______________________________

On Appeal From the United States District

Court For the Eastern District

of Pennsylvania

(D.C. No. 02-cr-00738)

District Judge: Honorable Michael M.

Baylson 

_______________________________

Submitted Under Third Circuit LAR 34.1(a)

June 28, 2004

Before: AMBRO, BECKER and

GREENBERG, Circuit Judges

(Filed: July 19, 2004)

PATRICK L. MEEHAN, ESQ.

United States Attorney

LAURIE MAGID, ESQ.

Deputy United States Attorney for

Policy and Appeals

ROBERT A. ZAUZMER, ESQ.

Assistant United States Attorney

Senior Appellate Counsel

FRANCIS C. BARBIERI, JR., ESQ.

Assistant United States Attorney

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Attorneys for Appellee

MAUREEN KEARNEY ROWLEY, ESQ.

Chief Federal Defender

DAVID L. McCOLGIN, ESQ.

Assistant Federal Defender

Supervising Appellate Attorney

ELAINE DeMASSE ESQ.

Assistant Federal Defender

Senior Appellate Counsel

Defender Association of Philadelphia

Federal Court Division

Curtis Center, Independence Square West

Suite 540 West

Philadelphia, PA 19106

Attorneys for Appellant

_______________________

OPINION

_______________________

BECKER, Circuit Judge.

This appeal by defendant Anthony

D’Angelico calls upon us once again to

assess whether a Guidelines sentence must

be vacated and the matter remanded to the

District Court because the parties have not

made a clear record on whether the District

Court’s denial of the downward departure

sought by D’Angelico—under U.S.S.G. §
2

5K2.13, based upon his putative mental

retardation—was based on legal or

discretionary grounds. If the refusal was on

legal grounds, we have jurisdiction; if it was

discretionary, we do not. See United States

v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir.

1991). Because the background facts and

procedural history generally do not bear on

this issue, we need not set them forth, except

insofar as they are necessary to our

disposition.

Notwithstanding our injunction in United

States v. Mummert, 34 F.3d 201 (3d Cir.

1994), that District Judges clearly note the

basis for their refusal to depart downward,

the issue keeps recurring.

What the District Judge said here was:

I do not find that there are grounds

for a downward departure, as you

have requested, and I’m going to deny

that. But, I will sentence your client

to the lower end of the guideline

range and in the hopes that he’s going

to have to spend about six years in

prison. Maybe he’ll get some time

off for good behavior. And, he’ll just

understand that he can’t conduct

himself the way he was.

D’Angelico submits that the statement is less

than pellucid:

Although U.S.S.G. § 5K2.13 [the

Guideline at issue] expressly sets out

a number of limitations on the court’s

departure authority, the district court

made no explicit findings regarding

any of those factors. Nor did the

court state that it had legal authority

to depart or state that its refusal to

depart resulted from the exercise of

its discretion. Furthermore, the

statement the court did make (“I do

not find that there are grounds for a

downward departure”) is ambiguous

regarding the basis for the court’s

ruling, as it equally supports both a

conclusion that the refusal to depart

was based on a belief that one or

more of the express limitations on the

court’s authority to depart did exist in

this case, and a conclusion that the

refusal resulted from the exercise of

discretion. . . . As such, the record

fails to reveal whether denial of the

departure was based on legal or

discretionary grounds. 

This argument is very strong. On the

other hand, the government points out that it

did not dispute at sentencing that the District

Court had the authority to depart under the

circumstances of this case. It goes on to

demonstrate the point: 

[W]hen the District Court asked for

the government to respond to the

defendant’s motion, the government

stated that “to some extent[,] there’s

some validity to that position and [the

government] would not object to

some minimum departure in light of

the defendant’s diminished capacity

and the fact that his mental capacity

played some role in the offense here.”

In Mummert we stated that where the

government concedes the plausibility of the

downward departure, “it seems quite likely

that the district court’s refusal to depart . . .
3

was discretionary.” 34 F.3d at 205.

We are chagrined that the district courts,

which could so easily make crystal clear

whether their refusal to depart is because

they do not believe that they have the

authority to do so or, conversely, whether

they understand their authority to depart and

exercise their discretion not to, so often fail

to take that opportunity. This is the case

here. Our frustration is not limited to the

courts, for the prosecutor and defense

counsel also bear responsibility. There is no

reason that, if a district court does not clarify

the basis for non-departure, counsel should

not remind the court to do so. Emphatically,

this is counsel’s responsibility for it is a

matter of preserving the record for appeal

(or, from the government’s point of view,

insulating the judgment from appeal).

Counsels’failures engender needless appeals

and waste of time and funds. We expect

counsel to heed this injunction.

Though this is not our preferred course,

the state of the record here does allow us to

divine, albeit indirectly, the basis for the

District Court’s refusal to depart downward.

The government acknowledged atsentencing

itself that the defendant was correct that the

Court had the power to depart. Given this,

we are satisfied that the able District Judge

in this case understood his authority to depart

and exercised his discretion not to do so.

Under the circumstances, we have no

appellate jurisdiction. See United States v.

Denardi, 892 F.2d 269, 272 (3d Cir. 1989)

(holding that the Court of Appeals lacks

jurisdiction under 18 U.S.C. § 3742 to

entertain an appeal from a district court’s

exercise of discretion in refusing to depart

downward). The appeal will therefore be

dismissed.