2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-14-2002

USA v. Sees

Precedential or Non-Precedential:

Docket 1-2418

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Recommended Citation

"USA v. Sees" (2002). 2002 Decisions. Paper 121.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/121
 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 01-2418 

 ___________ 

 UNITED STATES OF AMERICA 

 

 v. 

 THOMAS SEES, 

 Appellant 

 _______________________________________________ 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 D.C. Criminal No. 00-cr-00247 

 (Honorable Joel A. Pisano) 

 ___________________ 

 Submitted Pursuant to Third Circuit LAR 34.1(a) 

 January 17, 2002 

Before: SCIRICA and ROSENN, Circuit Judges, and KANE, District Judge* 

 (Filed February 13, 2002) 

 

 *The Honorable Yvette Kane, United States District Judge for the 

Middle District of 

Pennsylvania, sitting by designation. 

 ______________ 

 MEMORANDUM OPINION 

 ______________ 

SCIRICA, Circuit Judge. 

 This is a sentencing appeal. Thomas Sees pled guilty in the United 

States District 

Court for the District of New Jersey to a superseding information charging 

that on 
October 27, 1999, he knowingly and intentionally used a communication 

facility (a 

telephone) to facilitate the distribution and the possession with intent 

to distribute 

methamphetamine, a felony under 21 U.S.C.  841(a)(1), in violation of 21 

U.S.C. 

843(b). On appeal, Sees contends the District Court erred in failing to 

grant a downward 

departure under U.S.S.G. 5K2.0 based on extraordinary post-offense 

rehabilitation. 

 "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. Sally, 116 F.3d 76, 78 (3d Cir. 1997) (quoting United 

States v. 

McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996)). At sentencing, the District 

Court explicitly 

articulated more than once that it had the power to depart from the 

Guidelines based on 

defendant's post-offense rehabilitation efforts. The court framed the 

issue before it as 

whether it should "exercise the discretion that I recognize I have in 

order to make a 

downward departure" on the basis of post-offense rehabilitation. (App. 

62). The District 

Court's recognition of its authority in this regard also was reflected in 

the court's 

willingness to hear testimony concerning defendant's post-offense 

rehabilitation, and in 

the court's discussion with counsel concerning whether to depart in view 

of the facts of 

this particular case. The District Court decided, however, that 

defendant's post-offense 

conduct was not "so exceptional" as to warrant a downward departure from 

the 

Guidelines. 

 As a result, we lack jurisdiction to review the District Court's 

refusal of a 

downward departure in this matter. The appeal is dismissed for lack of 

jurisdiction. 

 

TO THE CLERK: 

 Please file the foregoing opinion. 

 /s/ Anthony J. Scirica 

 Circuit Judge 
DATED: February 13, 2002