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    United States v. Jose Alberto Munoz, 946 F.2d 729, 10th Cir. (1991)

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    The defendant pled guilty to conspiracy to distribute and possess cocaine with intent to distribute. The district court sentenced the defendant to 210 months in prison. The defendant appealed, arguing that the district court abused its discretion by refusing to grant the government's motion for a downward departure based on the defendant's substantial assistance. The appellate court dismissed the appeal, finding that it did not have jurisdiction to review a district court's discretionary refusal to depart downward from the sentencing guidelines.

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    United States v. Jose Alberto Munoz, 946 F.2d 729, 10th Cir. (1991)

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    The defendant pled guilty to conspiracy to distribute and possess cocaine with intent to distribute. The district court sentenced the defendant to 210 months in prison. The defendant appealed, arguing that the district court abused its discretion by refusing to grant the government's motion for a downward departure based on the defendant's substantial assistance. The appellate court dismissed the appeal, finding that it did not have jurisdiction to review a district court's discretionary refusal to depart downward from the sentencing guidelines.

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    Filed: 1991-10-07 Precedential Status: Precedential Citations: 946 F.2d 729 Docket: 91-7018

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    The defendant pled guilty to conspiracy to distribute and possess cocaine with intent to distribute. The district court sentenced the defendant to 210 months in prison. The defendant appealed, arguing that the district court abused its discretion by refusing to grant the government's motion for a downward departure based on the defendant's substantial assistance. The appellate court dismissed the appeal, finding that it did not have jurisdiction to review a district court's discretionary refusal to depart downward from the sentencing guidelines.

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    13 views2 pages

    United States v. Jose Alberto Munoz, 946 F.2d 729, 10th Cir. (1991)

    Uploaded by

    Scribd Government Docs
    The defendant pled guilty to conspiracy to distribute and possess cocaine with intent to distribute. The district court sentenced the defendant to 210 months in prison. The defendant appealed, arguing that the district court abused its discretion by refusing to grant the government's motion for a downward departure based on the defendant's substantial assistance. The appellate court dismissed the appeal, finding that it did not have jurisdiction to review a district court's discretionary refusal to depart downward from the sentencing guidelines.

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    of 2

    946 F.

    2d 729

    UNITED STATES of America, Plaintiff-Appellee,


    v.
    Jose Alberto MUNOZ, Defendant-Appellant.
    No. 91-7018.

    United States Court of Appeals,


    Tenth Circuit.
    Submitted on the Briefs. *
    Oct. 7, 1991.
    Mark Green of Green and Green, Muskogee, Okl., on briefs, for
    defendant-appellant.
    John Raley, U.S. Atty., Sheldon J. Sperling, Asst. U.S. Atty., Muskogee,
    Okl., Richard A. Friedman, Atty., Dept. of Justice, Washington, D.C., on
    briefs, for plaintiff-appellee.
    Before BALDOCK and EBEL, Circuit Judges, and ANDERSON, District
    Judge.**
    BALDOCK, Circuit Judge.

    Defendant-appellant Jose Alberto Munoz pled guilty to one count of conspiracy


    to distribute cocaine and to possess cocaine with intent to distribute, 21 U.S.C.
    846. The district court, applying the Sentencing Guidelines, sentenced
    defendant to 210 months imprisonment. Defendant appeals, contending that the
    district court abused its discretion in refusing to grant the government's 5K1.1
    motion recommending a downward departure for substantial assistance. See
    U.S.S.G. 5K1.1 (Nov. 1990). We dismiss the appeal for lack of jurisdiction.

    Section 5K1.1 provides that "[u]pon motion of the government stating that the
    defendant has made a good faith effort to provide substantial assistance in the
    investigation or prosecution of another person who has committed an offense,
    the court may depart from the guidelines." (emphasis supplied). This language
    clearly states that the district court's decision to depart is discretionary, and we

    repeatedly have held that we do not have jurisdiction to review a district court's
    discretionary refusal to depart downward from the guidelines. See e.g., United
    States v. Soto, 918 F.2d 882, 883 (10th Cir.1990); United States v. Davis, 900
    F.2d 1524, 1528-30 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 155, 112
    L.Ed.2d 121 (1990). The government's 5K1.1 motion recommending
    downward departure does not alter this jurisdictional rule, for the ultimate
    decision of whether to depart rests in the sound discretion of the district court.
    See United States v. Richardson, 939 F.2d 135, 139-140 (4th Cir.1991) (
    5K1.1 substantial assistance departure is discretionary); United States v.
    Damer, 910 F.2d 1239, 1240-41 (5th Cir.) (per curium) (same), cert. denied, --U.S. ----, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990). See also United States v.
    Hayes, 939 F.2d 509, 511-13 (7th Cir.1991) (interpreting 18 U.S.C. 3553(e),
    citing Damer).
    3

    Pursuant to 18 U.S.C. 3742, we may review a sentence which is (1) imposed


    in violation of law, (2) based on an incorrect application of the Guidelines, (3)
    imposed outside the applicable guideline range and plainly unreasonable or (4)
    imposed for an offense which is not addressed by the guidelines and plainly
    unreasonable. Defendant does not seek review under any of these jurisdictional
    bases. Instead, he urges us to review for an abuse of discretion the district
    court's refusal to depart downward. Because we lack jurisdiction to engage in
    this type of review, we must dismiss the appeal.

    SO ORDERED.

    The parties have waived oral argument pursuant to Fed.R.App.P. 34(f). The
    case therefore is ordered submitted without oral argument

    **

    Honorable Aldon J. Anderson, Senior United States District Judge for the
    District of Utah, sitting by designation

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