United States v. Smith

Third Circuit

United States v. Smith

125 F. App'x 451

CourtCourt of Appeals for the Third Circuit

DecidedMarch 29, 2005

Docket03-4679

StatusUnpublished

This text of 125 F. App'x 451 (United States v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Smith, 125 F. App'x 451 (3d Cir. 2005).

Pincite

Opinion

OPINION OF THE COURT

FISHER, Circuit Judge.

In his brief, appellant waives any challenge to his conviction, instead asking that we remand for clarification as to whether the District Court’s denial of a downward departure was based on an exercise of discretion. However, the record, including the prosecutor’s concessions that departure would be lawful, make it clear that the District Court understood its authority and simply exercised its discretion not to depart when stating that a departure was “not warranted.” We therefore lack appellate jurisdiction over this portion of the appeal. See United States v. Denardi, 892 F.2d 269 (3d Cir.1989).

We note that appellant also filed a post-briefing motion regarding other sentencing issues arising from Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Having determined that these other sentencing issues are best determined by the District Court in the first instance, we will vacate the sentence and remand for re-sentencing in accordance with United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION OF THE COURT

FISHER, Circuit Judge.

In his brief, appellant waives any challenge to his conviction, instead asking that we remand for clarification as to whether the District Court’s denial of a downward departure was based on an exercise of discretion. However, the record, including the prosecutor’s concessions that departure would be lawful, make it clear that the District Court understood its authority and simply exercised its discretion not to depart when stating that a departure was “not warranted.” We therefore lack appellate jurisdiction over this portion of the appeal. See United States v. Denardi, 892 F.2d 269 (3d Cir.1989).

We note that appellant also filed a post-briefing motion regarding other sentencing issues arising from Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Having determined that these other sentencing issues are best determined by the District Court in the first instance, we will vacate the sentence and remand for re-sentencing in accordance with United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Cite This Page — Counsel Stack

Bluebook (online)

125 F. App'x 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smith-ca3-2005.

Opinion

Related

Cite This Page — Counsel Stack