U.S. v. D'Angelico, 03-3537.

• Decision Date: 19 July 2004
• Docket Number: No. 03-3537.,03-3537.
• Parties: UNITED STATES of America v. Anthony D'ANGELICO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 141

376 F.3d 141

UNITED STATES of America v. Anthony D'ANGELICO, Appellant.

No. 03-3537.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) June 28, 2004.

July 19, 2004.

Appeal from the United States District Court for the Eastern District of Pennsylvania, Michael M. Baylson, J.

Patrick L. Meehan, United States Attorney, Laurie Magid, Deputy United States Attorney for Policy and Appeals, Robert A. Zauzmer, Assistant United States Attorney, Senior Appellate Counsel, Francis C. Barbieri, Jr., Assistant United States Attorney, Office of United States Attorney, Philadelphia, for Appellee.

Maureen Kearney Rowley, Chief Federal Defender, David L. McColgin, Assistant Federal Defender, Supervising Appellate Attorney, Elaine DeMasse, Assistant Federal Defender, Senior Appellate Counsel, Defender Association of Philadelphia, Federal Court Division, Philadelphia, for Appellant.

Before AMBRO, BECKER and GREENBERG, Circuit Judges.

OPINION

BECKER, Circuit Judge.

This appeal by defendant Anthony D'Angelico calls upon us once again to assess whether a Guidelines sentence must be vacated and the matter remanded to the District Court because the parties have not made a clear record on whether the District Court's denial of the downward departure sought by D'Angelico-under U.S.S.G. § 5K2.13, based upon his putative mental retardation — was based on legal or discretionary grounds. If the refusal was on legal grounds, we have jurisdiction; if it was discretionary, we do not. See United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir.1991). Because the background facts and procedural history generally do not bear on this issue, we need not set them forth, except insofar as they are necessary to our disposition.

Notwithstanding our injunction in United States v. Mummert, 34 F.3d 201 (3d Cir.1994), that District Judges clearly note the basis for their refusal to depart downward, the issue keeps recurring.

What the District Judge said here was:

I do not find that there are grounds for a downward departure, as you have requested, and I'm going to deny that. But, I will sentence your client to the lower end of the guideline range and in the hopes that he's going to have to spend about six years in prison. Maybe he'll get some time off for good behavior. And, he'll just understand that he can't conduct himself the way he was.

D'Angelico submits that the statement is less than pellucid:

Although U.S.S.G. § 5K2.13 [the Guideline at issue] expressly sets out a number of limitations on the court's departure authority, the district court made no explicit findings regarding any of those factors. Nor did the court state that it had legal authority to depart or state that its refusal to depart resulted from the exercise of its discretion. Furthermore, the statement the court did make ("I do not find that there are grounds for a downward departure") is ambiguous regarding the basis for the court's ruling, as it equally supports both a conclusion that the refusal to depart was based on a belief that one or more of the express limitations on the court's authority to depart did exist in this case, and a conclusion that the refusal resulted from the exercise of discretion.... As such, the record fails to reveal whether denial of the departure was based on legal or discretionary grounds.

This argument is very strong. On the other hand, the government points out that it did not dispute at sentencing that the District Court had the authority to depart under ...