Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-30-2002

USA v. Colon
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3864




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"USA v. Colon" (2002). 2002 Decisions. Paper 547.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/547


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                   NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                           No.    01-3864



                     UNITED STATES OF AMERICA

                                  v.

                          MAMERTO COLON,

                                       Appellant



           Appeal from the United States District Court
             for the Middle District of Pennsylvania
              (D.C. Criminal Action No. 00-cr-00178)
             District Judge: Honorable Edwin M. Kosik


            Submitted Under Third Circuit LAR 34.1(a)
                          August 2, 2002

         Before: ROTH, RENDELL and AMBRO, Circuit Judges

                 (Opinion filed    August 30, 2002)

                         _______________

                             OPINION

AMBRO, Circuit Judge
     Mamerto Colon appeals his sentence, contending that the District Court erred
under the United States Sentencing Guidelines ("U.S.S.G.") when it denied his request
for a downward departure based on his status as a convicted deportable alien. Because
the record shows that the District Court believed it had the authority under the Guidelines
to depart downward, but exercised its discretion not to do so, we shall dismiss Colon’s
appeal for lack of jurisdiction.
                               I.
     After a jury trial, Colon was convicted of possession with intent to distribute in
excess of five hundred grams of cocaine in violation of 841(a), and of conspiracy to
distribute and possess with intent to distribute in excess of five kilograms of cocaine in
violation of 846. At sentencing, Colon requested a downward departure pursuant to
U.S.S.G. 5K2.0 on the ground that he was a convicted deportable alien subject to
potential consequences not visited upon others convicted of the same offenses. The
District Court denied his request. Without elaborating, the Court stated that "while
[convicted deportable alien status] has been considered in some jurisdictions and not in
the Third Circuit to the extent that I know, I agree with the government’s position." The
Court then sentenced Colon at the lowest end of the applicable sentencing range,
imposing concurrent sentences of fifty-one months for each offense.
                              II.
     We have no jurisdiction to review a refusal to depart downward when a district
court believes it has the authority to do so but exercises its discretion to find a departure
unwarranted. United States v. Evans, 

, 111 (3d Cir. 1995); United States v.
Denardi, 

, 272 (3d Cir. 1989). We do have jurisdiction, however, when a
district court denies a downward departure request because it thinks it lacks authority to
grant it. United States v. Marin-Casteneda, 

, 554 (3d Cir. 1998).
     When it is "impossible to discern from the record" whether the denial of a
downward departure request was based on a presumed lack of authority or an exercise of
discretion, our Court’s practice is to "vacate the sentence and remand for the district
court to clarify the basis for its ruling." United States v. Mummert, 

, 205 (3d
Cir. 1994). Thus in Mummert we remanded because "the record [did] not make clear"
why the District Court rejected the defendant’s grounds for departing downward. Id.
Similarly, in United States v. Powell, 

 (3d Cir. 2001), we vacated the
defendant’s sentence and remanded because we had "no way of knowing why the district
court denied the requested departure," as the Court "had not given any reason for denying
[the defendant’s] request." Id. at 179.
     At Colon’s sentencing hearing, the District Court did not explicitly say whether it
believed it had the authority to depart downward based on Colon’s immigration status. It
did say, however, that it "agree[d] with the government’s position," which was that a
downward departure was not appropriate because it would reward Colon merely for
being an alien. The Government did not argue that the Court lacked the authority to
depart downward on this ground; indeed, it acknowledged that some courts outside the
Third Circuit have granted downward departures for convicted deported aliens. This
context indicates that when the District Court said it agreed with the Government’s
position, it thought that it could depart downward but deemed this an imprudent exercise
of its discretion. The District Court’s explanation of its ruling was "not sufficiently
ambiguous as to require vacatur and remand." United States v. Stevens, 

,
247 (3d Cir. 2000).
     Although the record here is adequate for us to understand the District Court’s
reasoning, it is better that district courts state explicitly whether they believe they have
the authority to grant a downward departure when one is requested. See Mummert, 34
F.3d at 205 n.2 (explaining that our policy of remanding where the record is ambiguous
as to the district court’s reasoning is designed "to encourage district courts to make clear
whether their departure rulings rest on legal or discretionary grounds"); see also United
States v. Georgiadis, 

, 1222-23 (3d Cir. 1991) (holding that district court’s
failure to state clearly whether it believed it had authority to depart downward was not
reversible error where court denied departure on discretionary grounds, but "urg[ing]
district courts to make sentencing decisions express whenever possible, especially when
a defendant has requested a downward departure from the Guidelines," to avoid "wasted
resources on appeal and pointless remand"). With that caveat, we dismiss this appeal for
lack of jurisdiction.



                              By the Court,

                                  /s/ Thomas L. Ambro
                              Circuit Judge