19-852 United States v. Knowles

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



### SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AN D THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, on the 21 st day of February, two thousand twenty.

PRESENT: J OHN M. W ALKER , J R ., B ARRINGTON D. P ARKER , S USAN L. C ARNEY , Circuit Judges

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U NITED S TATES OF A MERICA , Appellee
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v. No. 19-852

D ONALD K NOWLES , Defendant-Appellant

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_____________ _______________ _____________ FOR APPELLEE: A NDREY S PEKTOR (Jo Ann M. Navickas, Margaret E. Gandy, on the brief ) Assistant United States Attorneys, Of Counsel, for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY.2 FOR DEFENDANT-APPELLANT: J OSEPH G ENTILE , Frankie & Gentile, P.C., Mineola, NY.
Appeal from a judgment of the United Stat es District Court for the Eastern District of New York (Kuntz, J. ).

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment ente red on April 2, 2019, is
AFFIRMED

. Defendant-Appellant Donald Knowles appe als from a judgment entered by the District Court after he pleaded guilty withou t a plea agreement to one count of unlawful possession of a firearm as a felon in viol ation of 18 U.S.C. §§ 922(g) and 924(a)(2). The District Court sentenced Knowles pr imarily to 60 months’ imprisonment. Knowles timely appealed, raising challe nges to his sentence.
Knowles accepts that application of the U. S. Sentencing Guidel ines resulted in a sentencing range of from 57 to 71 months based on a Total Offense Level of 21 and Criminal History Category of IV. He challenges, however, the District Court’s refusal to make two discretionary downward departures. We assume the pa rties’ familiarity with the underlying facts, procedural history, and arguments on appeal, to which we refer only as necessary to explain our decision to affirm.
Unlike many sentencing challenges, “a refusal to downwardly depart is generally not appealable.” United States v. Cuevas , 496 F.3d 256, 268 (2d Ci r. 2007) (internal quotation marks omitted). Rather, courts of appeals typi cally have no jurisdiction to entertain such claims. Only in certain circumstances may such a refusal be subject to appeal: “Claims that the district court erred in refusing to depart are not cognizable on appeal in the absence of substantial indication that the district judge be lieved she lacked authority to depart or an
indication that a violation of the law occurred.” United States v. Jackson , 658 F.3d 145, 153-54 (2d Cir. 2011); see also United States v. Scott , 387 F.3d 139, 143 (2d Ci r. 2004) (holding that a district court’s sentencing deci sion is appealable for procedur al error “where the defendant shows that a violation of law occurred, that the Guidelines were misapplied, or that the3 refusal to depart was based on the sentencing co urt’s mistaken conclusion that it lacked the authority to depart” (internal quotation marks om itted)). Our practice is to presume that the district court understood its authority unless the record contains evidence suggesting the contrary: “In the absence of clear eviden ce of a substantial risk that the judge misapprehended the scope of his departure au thority, we presume that a sentence judge understood the scope of his authority.” United States v. Stinson , 465 F.3d 113, 114 (2d Cir. 2006) (internal quotations marks omitted).
Knowles argues first that the District Cour t erred in declining to depart downwardly under the authority of U.S.S.G. § 5H1.4 based on evidence that Knowles suffers from pain arising from a jaw injury and related surgery in 2013, pain that additional surgery in 2018 was not able to eliminate fully. Section 5H1.4 provides that “[a]n extraordinary physical impairment may be a reason to depart downwa rd. . . .” The District Court’s sentencing memorandum reflects beyond doub t, however, that it understood the relevant facts and determined that they did not warrant a downward departure. We perceive no risk that the District Court misunderstood its authority he re. We are therefore not free to review its decision not to depart downward ly from the Guidelines range.

Knowles next contends that the District Court erred in declining to depart downwardly under the authority of U.S.S.G. § 4A1.3(b)(1). Section 4A1.3(b)(1) provides that, “[i]f reliable information indicates that the defendant’s criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit ot her crimes, a downward departure may be
warranted.” Knowles contends that a Crimin al History Category of IV overstates the
seriousness of his criminal reco rd. The District Court analyzed this argument, too, in its sentencing memorandum and d eclined to depart. Knowles poi nts to no evidence that the District Court misperceived its author ity under section 4A1.3(b)(1) either. See United States v.
Desena , 260 F.3d 150, 159 (2d Cir. 200 1) (holding that a district court’s denial of motion to downwardly depart under U.S.S.G. § 4A1.3 is not appealable where there was “no indication that [the district court] mistakenly believed [t hat it] lacked the authority to depart as a matter of law”). Therefore this decision, too, is not subject to our review.4 * * *

We have considered all of Knowles’s rema ining arguments and conclude that they are without merit. The judgment of the District Court is AFFIRMED

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FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court