2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-13-2002

USA v. Rolon

Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1105

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Recommended Citation

"USA v. Rolon" (2002). 2002 Decisions. Paper 495.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 __________ 

 

 NO. 02-1105 

 __________ 

 

 UNITED STATES OF AMERICA 

 v. 

 RICARDO ROLON, 

 Appellant 

 __________ 

 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Criminal No. 01-cr-00583-1) 

 District Judge: Honorable Nicholas H. Politan 

 __________ 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 on August 1, 2002 

 

 Before: ROTH, RENDELL and AMBRO, Circuit Judges 

 (Filed: August 13, 2002) 

 __________ 

 

 OPINION OF THE COURT 

 __________ 

 

RENDELL, Circuit Judge. 

 Appellant Ricardo Rolon appeals from the judgment of conviction and sentence 

entered by the District Court on December 21, 2001. At sentencing, Rolon moved for 

downward departure on the ground that the career offender category operated to overrepresent his criminal history and his offense conduct. The District Court was aware that 

it had the authority to grant a downward departure; however, it exercised its discretion 

and denied Rolon’s request. Rolon asserts jurisdiction pursuant to 28 U.S.C. 1291 and 

18 U.S.C. 3742, but as explained below we are without jurisdiction to review the 

District Court’s discretionary denial of a downward departure. Accordingly, we will 

dismiss the appeal for lack of jurisdiction. 

 Rolon was charged on September 7, 2001 with possession of more than two 

kilograms of cocaine with intent to distribute in violation of 21 U.S.C. 841. He 

subsequently pled guilty pursuant to a plea agreement. The Presentence Investigation 

Report ("PSI") recommended that Rolon be classified as a career offender under 

U.S.S.G. 4B1.1 since his instant offense involved a controlled substance, he was 18 

years or older at the time of its commission, and he was previously convicted of one 

crime of violence and one controlled substance offense. As a result, the PSI 

recommended a total offense level of 31, which included a stipulated three-level 

downward adjustment for acceptance of responsibility. As a career offender, Rolon was 

assigned a criminal history category of VI. The applicable guideline range, therefore, 

was 188 to 235 months. 

 At the sentencing hearing on December 19, 2001, the District Court adopted the 

PSI and sentenced Rolon to 188 months in prison and five years supervised release. 

During this hearing, Rolon moved for a downward departure based upon his claim that 

his classification as a career offender over-represented the seriousness of his criminal 

history. Rolon concedes that the court acknowledged its authority to depart and the 
grounds upon which the departure application rested, although he claims that the court 

did so in a "pro forma" manner. In denying his motion, the District Court stated, "The 

Court is satisfied that no adequate showing has been made for downward departure on 

the grounds indicated in the papers and [the Court] will adopt the Presentence Report as 

being [its] findings in this matter. For the additional reasons more particularly set forth 

in the government’s response to [Rolon’s] motion, I see no reason to downwardly 

depart." By way of clarification, the court said, "I always have the authority [to depart in 

the sentence]." 

The District Court was aware that it had the authority to grant Rolon’s request for 

a downward departure and exercised its discretion in denying this request. Under these 

circumstances, we lack jurisdiction to review the sentence imposed by the District Court. 

United States v. Torres, 251 F.3d 138, 151-152 (3d Cir. 2001). 

 For the foregoing reasons, we will dismiss the appeal for lack of jurisdiction. 

 ___________________________ 

TO THE CLERK OF COURT: 

 Please file the foregoing Not Precedential Opinion. 

 /s/ Marjorie O. Re

 Circuit Judge