United States v. Shabazz ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
7-26-2002
USA v. Shabazz
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-4515
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Recommended Citation
"USA v. Shabazz" (2002). 2002 Decisions. Paper 449.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4515
UNITED STATES OF AMERICA
v.
TROY SHABAZZ,
a/k/a "TROY ROBINSON,"
Appellant
_______________________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 01-cr-00247
(Honorable Eduardo C. Robreno)
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 15, 2002
Before: SCIRICA, ALITO and FUENTES, Circuit Judges
(Filed: July 26, 2002)
OPINION OF THE COURT
SCIRICA, Circuit Judge.
On July 16, 2001, Troy Robinson pled guilty to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. 922(g)(1). Robinson was placed in a
sentencing range of 46 to 57 months’ imprisonment under the Sentencing Guidelines.
Robinson moved for a downward departure based on a family hardship pursuant to
U.S.S.G. 5H1.6 (Family Ties and Responsibilities, and Community Ties). The
District Court denied Robinson’s motion and sentenced him to 51 months in prison, a
$1,000 fine and a $100 special assessment. We will dismiss the appeal for lack of
jurisdiction.
I.
On appeal, Robinson contends that the District Court did not consider his family
hardship when imposing sentence. He suggests we exercise plenary review.
We disagree. If a district court imposes a sentence in violation of law, or
misapplies the Sentencing Guidelines, we exercise plenary review. See United States v.
Spiropoulos, 976 F.2d 155, 160 n.2 (3d Cir. 1992). But if a district court acknowledges
its authority to depart and decides not to do so, we lack appellate jurisdiction. See
United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996); United States v. Denardi,
892 F.2d 269, 272 (3d Cir. 1989). In this case, the District Court expressly
acknowledged it had the power to depart from the Guidelines, but determined
Robinson’s family hardship did not warrant departure. Thus, we lack jurisdiction over
this matter under 18 U.S.C. 3742. Denardi, 892 F.2d at 271-72.
II.
For the foregoing reasons, we will dismiss the appeal for lack of jurisdiction.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Circuit Judge
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-4515
___________
UNITED STATES OF AMERICA
v.
TROY SHABAZZ,
a/k/a "TROY ROBINSON,"
Appellant
_______________________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 01-cr-00247
(Honorable Eduardo C. Robreno)
___________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 15, 2002
Before: SCIRICA, ALITO and FUENTES, Circuit Judges
JUDGMENT
This cause came to be considered on the record from the United States
District Court for the Eastern District of Pennsylvania and was submitted pursuant to
Third Circuit LAR 34.1(a) on July 15, 2002. On consideration whereof, it is now hereby
ORDERED and ADJUDGED by this Court that the appeal of the judgment
of the District Court entered December 20, 2001, be, and the same is hereby dismissed
for lack of jurisdiction. All of the above in accordance with the opinion of this Court.
ATTEST:
Acting Clerk
DATED: 26 July 2002