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


7-22-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3625




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Recommended Citation
"USA v. Tate" (2002). 2002 Decisions. Paper 422.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/422


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                                                   NOT PRECEDENTIAL
                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No: 01-3625
                        _______________

                    UNITED STATES OF AMERICA

                                 v.

                       ERIC DARNELL TATE,
                            a/k/a ET

                        Erick Darnell Tate,


                                      Appellant


          Appeal from the United States District Court
            for the Western District of Pennsylvania
            (D.C. Criminal Action No. 00-cr-00014E)
          District Judge: Honorable Sean J. McLaughlin



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

           Before: ROTH and STAPLETON, Circuit Judges
                    POLLAK*, District Judge

               (Opinion filed:   July 19, 2002 )


     * Honorable Louis H. Pollak, District Court Judge for the Eastern District of
Pennsylvania, sitting by designation




                         O P I N I O N



ROTH, Circuit Judge:
     Appellant Eric Darnell Tate appeals the September 18, 2001 Judgment of the
United States District Court for the Western District of Pennsylvania that sentenced him
to 188 months imprisonment followed by five years of supervised release. Specifically,
Tate argues that the District Court erred by refusing to make a downward departure to his
sentence. We will dismiss Tate’s appeal in part and otherwise affirm the judgment of the
District Court.
     On June 12, 2001, Tate pled guilty to one of two counts of distributing five or
more grams of cocaine base, in violation of 21 U.S.C. section 841(b)(1)(B)(iii). For
sentencing purposes, the District Court considered Tate a "career offender" because he
had two prior felony convictions, including one "crime of violence" and one "controlled
substance offense." See United States Sentencing Commission, Guidelines Manual
4B1.1 (2001) (hereinafter "U.S.S.G."). In accordance with U.S.S.G. section 4B1.1, the
District Court sentenced Tate to a more lengthy sentence than it would have had Tate not
been considered a career offender.
     As suggested above, however, Tate does not challenge the District Court’s
conclusion that he qualifies as a career offender under U.S.S.G. section 4B1.1. Rather,
he makes two arguments that the District Court erred in declining to depart downward
from the sentence prescribed by the career offender provision. First, Tate invites us to
review anew the merits of his plea for a downward departure, arguing that the predicate
offenses on which his career offender status is based overstate his criminal history and
likelihood of recidivism. Tate’s second argument concerns a police report written in
connection with his 1994 aggravated assault conviction - one of the two predicate felony
convictions on which his career offender status is based. In this second argument, Tate
contends that the District Court erred by considering an unproven allegation made in the
report that Tate possessed drugs at the time of the assault.
     We must dismiss Tate’s first argument for want of appellate jurisdiction. "We
lack jurisdiction to review a refusal to depart downward when the district court, knowing
it may do so, nonetheless determines that departure is not warranted." United States v.
McQuilkin, 

, 729 (3d Cir. 1996). The transcript of Tate’s sentencing hearing
makes clear that the District Court was aware of its authority to grant a downward
departure. See Appendix at 20a. Indeed, the District Court explicitly referenced the
sources of this authority. See 

States v. Shoupe, 

, 836 (3d
Cir. 1994) (acknowledging authority of district court to make a downward departure
from Section 4B1.1 guidelines where defendant’s criminal offender status overstates his
criminal history and likelihood of recidivism) and U.S.S.G. 4A1.3 (policy statement
authorizing such departures)). Therefore, we cannot review anew the merits of the
District Court’s decision.
     While we can address Tate’s second argument since it alleges legal error, we find
the argument to be without merit. The District Court properly considered the police
report’s allegation of drug possession, notwithstanding the fact that Tate was neither
charged with nor convicted of this criminal conduct. Section 4A1.3(e) of the Guidelines
specifically allows the district courts to consider uncharged prior criminal conduct of a
similar nature in making departure determinations. See U.S.S.G. 4A1.3(e).
     Moreover, Tate’s second objection must also fail to the extent that it challenges
the admissibility of the drug possession allegation as hearsay. Subject to certain
exceptions and limitations not applicable here, the Federal Rules of Evidence do not
apply in the context of sentencing determinations. See Fed. R. Evid. 1101(d)(3); United
States v. Dass, 

(3d Cir. 2002). Rather, "[i]n resolving any
dispute concerning a factor important to the sentencing determination, the court may
consider relevant information without regard to its admissibility under the rules of
evidence applicable at trial, provided that the information has sufficient indicia of
reliability to support its probable accuracy. " U.S.S.G. 6A1.3(a). See also United
States v. Brothers, 

, 848 (3d Cir. 1996) (applying the same standard
specifically to hearsay). Tate does not allege that the police report lacked sufficient
indicia of reliability, and we find no support for such a conclusion in the record.
     For the foregoing reasons, we will dismiss Tate’s appeal in part and otherwise
affirm the September 18, 2001 Judgment of the District Court.




_______________________
TO THE CLERK:
     Please file the foregoing Opinion.
BY THE COURT:

    /s/ Jane R. Roth
       Circuit Judge