United States v. Morel , 29 F. App'x 903 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
3-14-2002
USA v. Morel
Precedential or Non-Precedential:
Docket 0-2039
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Recommended Citation
"USA v. Morel" (2002). 2002 Decisions. Paper 173.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-2039
_________________
UNITED STATES OF AMERICA
v.
ELIAZA MOREL, a/k/a TONY
Eliaza Morel, Appellant
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. No. 99-cr-00486 )
District Judge: Honorable William G. Bassler
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
March 7, 2002
Before: BECKER, Chief Judge, ALITO and RENDELL,
Circuit Judges.
(Filed: March 14, 2002)
_______________________
OPINION
_______________________
BECKER, Chief Judge.
This is an appeal by Eliaza Morel from a judgment of the District
Court pursuant
to a bargained-for guilty plea. The appeal is grounded upon Morel's
objection to the
failure of the District Court to make two downward departures: (1) because
of his alleged
willingness to be deported; and (2) because his criminal history category
over-represented
his criminal history. Because the parties are fully familiar with the
background facts and
procedural history we need not set them forth, and limit our discussion to
our ratio
decidendi. For the reasons that follow we will affirm.
First, we need not reach the departure issues because Morel was
subject to a
statutory mandatory minimum sentence of 60 months' imprisonment and he
received a
60-month sentence. Hence he was not entitled to any downward departure.
Second, and at all events, the District Court did not abuse its
discretion when it
found that it lacked the authority to depart downward based upon
defendant's agreement
not to contest deportation. Morel had to meet two requirements for such a
departure
that he had a nonfrivolous defense to deportation and that the government
requested a
departure see United States v. Marin-Castaneda, 134 F.3d 551, 555 (3d
Cir. 1998), and
he met neither. Moreover, the District Court did not plainly err (this
issue was not raised
in the District Court) when it did not sua sponte depart downward based
upon defendant's
status as an alien, for Morel did not demonstrate that under the Bureau of
Prison's
Regulations (even assuming that this states a valid ground for
deportation, a point in
dispute), he would be subject to a substantially different sentence from
someone who is
not an alien.
Finally, we lack jurisdiction over Morel's argument that his criminal
history
category overstated his criminal history. The District Court found that
that defendant's
criminal history category did not significantly overstate defendant's
criminal history. The
District Court recognized that it could depart either because the criminal
history category
over-represented the seriousness of defendant's criminal history or
because it overstated
the likelihood that defendant would commit further crimes. The Court,
after reviewing
the career offender guideline, decided not to depart:
Based upon the facts set forth in the presentence
report, it's
my conclusion that the downward departure is not justified.
The defendant's criminal history category does not
significantly over-represent the seriousness of his past
conduct and future threat to society.
We thus lack jurisdiction over this claim because the District Court
neither
misunderstood nor misapplied the law in evaluating defendant's downward
departure
request for overstatement of criminal history. 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); see
also United States v. Jarrett, 133 F.3d 519, 535 (7th Cir. 1998) (holding
that where the
court was aware of its authority to depart downward pursuant to section
4A1.3 where
criminal history category over-represented the criminal history but chose
not to do so, the
Court of Appeals lacked jurisdiction over the claim). The judgment of the
District Court
will be affirmed.
______________________
TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
/s/ Edward R. Becker
Chief Judge