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### No. 02-3980
UNIT ED STA TES OF AMERI CA

v. TRO Y J
. MORR OW,

Appellant Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 01-cr-00456) District Judge: Honorable Stephen M. Orlofsky Submitted Under Third Circuit LAR 34.1(a)

July 31, 2003 Before: SCIRI

CA, Chief

Judge , RENDELL

and AMBRO, Circuit Judges (Opinion filed : September 9, 2003)

OPINION AMBRO, Circu it J udge Troy J. Morrow appea

ls his sentence, imposed in connection with a February 13, 2001, bank rob bery in Parsipp any , New Jers ey . Beca use we la ck jurisd iction, we dismiss this a

ppeal. I. Facts and Procedural History On July 11, 2001, a federal g rand jury re

turned a four-count indictment against Morrow,2

charging him with two counts of bank robbery and two counts of knowingly jeopardizing the life of a bank teller du ring a b ank robb ery

by u sing a da

ngerous weapon, both viol ations of 18 U.S.C. § 2113. Morrow was indicted in connection with two bank robberies, one occ urring on February 1, 2001, at the First Union Bank located in Manalapan, Ne w Jersey, and one oc curring on February 13, 2001, at the First Union Bank located in Parsippany , New Jersey. Pursuant to a plea agreement, Morrow pleaded guilty to one count of ba nk robbery a

nd one count of jeopardizing the life of a bank teller, both counts in connection with the Februa ry 1 robber

y. The United States Probation Office issued a revised Presentenc e Report for Morrow on June 10, 2002, determining that his total offense level was 31 and that his criminal history category was VI. This corre sponded to a guideline range of 188 to 235 months of imprisonment. Morrow filed a downward departure motion under U.S.S.G. § 5K2.0, arguing first that he suffer ed menta l and phy sical abuse as a t eenag er that r

esulted in unusual e

motional pr

oblems, second that he cooperated with law enforc ement authorities from the moment of his arrest, and finally that he ac cepted full responsibility for his actions. The District Court accepted the guidelines range proposed by the Probation Office, and denied Mo

rrow’s r equest f or a down ward de parture , stating

that, “wh ile I acknowledge that I have the authority to depar t downwar

dly under the Sentencing Guide

lines, fo r the re asons I

shall now place on the record, I decline to do so in this case.” It imposed a sente nce of 188 months of imprisonment, five years of supervised release, and $6,082 in restitution. This appeal followed. II. Discussion Morrow’s sole argument on appeal is that the “district c ourt abused its discretion by refusing to depart downward in its sentencing .” We may consider a District Court’s ruling on a3

sentencing dep arture

motion only

when the ruling i s “based

on the dist

rict cou rt’s beli ef that a departure was legally

impermissible.” United States v. Stevens , 223 F.3d 239, 247 (3d Cir. 2000). We have no jurisdiction to “hear a challenge to the merits of a sentencing court’s discretionary decision not to depart downward from the Guidelines.” United States v. Georgiadis , 933 F.2d

1219, 1222

(3d Cir. 19 91). Her

e, the Dis trict Cour

t acknowledged

that it had discr etion to de

part downward, but declined to do so. Accord ingly , we lack jurisdiction to consider this argument. Because we lack jurisdiction to consider Morrow ’s challenge to the District Court’s exercise of discr etion, we dismiss his a

ppeal.4

TO THE CLERK: Please file the foregoing Opinion.
By the Court,

/s/ Thomas L. Ambro Circu it J udge