U.S. v. Vizcarra-Angulo, VIZCARRA-ANGUL
Decision Date | 11 April 1990 |
Docket Number | D,VIZCARRA-ANGUL,No. 89-50397,89-50397 |
Citation | 904 F.2d 22 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Pedroefendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Laura Lynne Elliot, Carlsbad, Cal., for defendant-appellant.
Amalia L. Meza and Roger W. Haines, Jr., Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before GOODWIN, Chief Judge, TANG, and BOOCHEVER, Circuit Judges.
Pedro Vizcarra-Angulo appeals his forty-month sentence for conspiracy to possess heroin with intent to distribute. We dismiss for lack of jurisdiction.
On April 24, 1989, Vizcarra-Angulo pled guilty to one count of violating 21 U.S.C. Secs. 846 and 841(a)(1) (1988). In return for his cooperation, the government agreed to recommend a forty-month sentence, which is below the statutory minimum of five years. The presentence report had calculated a sentence of eighty-seven months in custody under the Sentencing Guidelines. The district court accepted the government's recommendation, and pursuant to 18 U.S.C. Sec. 3553(e) (1988), sentenced Vizcarra-Angulo to forty months imprisonment. See United States Sentencing Commission, Guidelines Manual Sec. 5K1.1 (Oct. 15, 1988) ( ).
Vizcarra-Angulo now asserts that the departure downward to forty months was insufficient because he is functionally illiterate, unsophisticated, and was victimized by his coconspirators. At the sentencing hearing, Vizcarra-Angulo raised none of these objections to the forty-month sentence. Even if he did not thereby waive his right to raise these issues now, his appeal fails for a lack of jurisdiction.
We have recently held that "a district court's discretionary decision not to depart downward from the guidelines is not subject to review on appeal." United States v. Morales, 898 F.2d 99, 103 (9th Cir.1990). Because we have no jurisdiction when a defendant appeals the district court's discretionary refusal to depart downward, by the same reasoning we may not review a defendant's appeal from the district court's discretion in fixing the extent of a downward departure.
Our conclusion is supported by statutory language. A defendant may appeal a sentence if it:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range ...; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
18 U.S.C. Sec. 3742(a) (1988) (emphasis added). When the district court imposes a sentence that falls below the guideline range, the government may appeal. Id. at (b)(3). Defendants, however, may not appeal a sentence that falls below the guideline range because they are dissatisfied with the degree of departure imposed by the district court. There is no statutory authority for such an appeal, which would subject correctly calculated sentences to a scrutiny not intended by Congress. See Morales, 898 F.2d at 102-03 ( ).
Three other circuits have refused to review defenda...
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U.S. v. Cooper
...132 F.3d 897, 898 (3d Cir.1997) (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990)); accord United States v. Vizcarra-Angulo, 904 F.2d 22, 22-23 (9th Cir.1990) (finding no jurisdiction where the district court departed downward for government assistance but did not further dep......
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United States v. Cooper, No. 05-1447 (Fed. 3rd Cir. 4/4/2006)
...132 F.3d 897, 898 (3d Cir. 1997) (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990)); accord United States v. Vizcarra-Angulo, 904 F.2d 22, 22-23 (9th Cir. 1990) (finding no jurisdiction where the district court departed downward for government assistance but did not further d......
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U.S. v. Keene
...government has no control over extent of departure but may appeal that sentence imposed was unreasonable); and United States v. Vizcarra-Angulo, 904 F.2d 22 (9th Cir.1990) (court lacks jurisdiction to consider defendant's challenge of extent of district court's downward If we were to accept......
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U.S. v. Auld, 01-10669.
...defendant). The acceptance of the government's recommendation fell within the district court's discretion. See United States v. Vizcarra-Angulo, 904 F.2d 22, 23 (9th Cir.1990) ("[W]e may not review a defendant's appeal from the district court's discretion in fixing the extent of a downward ......
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Review Proceedings
...F.3d 565, 566 (7th Cir. 2012) (per curiam) (same); U.S. v. Maxwell, 778 F.3d 719, 734-35 (8th Cir. 2015) (same); U.S. v. Vizcarra-Angulo, 904 F.2d 22, 23 (9th Cir. 1990) (same); U.S. v. Hamilton, 413 F.3d 1138, 1146 (10th Cir. 2005) (same). But see, e.g. , U.S. v. Kane, 452 F.3d 140, 143-44......