United States v. Chase , 174 F.3d 1193 ( 1999 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
05/05/99
No. 98-4926 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 97-500-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN CHASE,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(April 5, 1999)
Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.
BLACK, Circuit Judge:
Appellant Stephen Chase appeals his sentence for possession of an
unregistered firearm, in violation of 26 U.S.C. §§ 5861(d), 5871. Appellant asserts
the district court erred in calculating his sentence by refusing to depart downward.
We hold we lack jurisdiction to review the district court's discretionary decision
not to depart downward.
I. BACKGROUND
Prior to sentencing in this case, Appellant asserted the following five
grounds for downward departure: (1) Appellant possessed weapons to avoid a
greater perceived harm; (2) Appellant's conduct was aberrant; (3) Appellant's old
age and weak physical condition warrant probation; (4) Appellant would lose his
professional teaching license as a result of his conviction; and (5) the totality of the
circumstances place this case outside the heartland of Sentencing Guidelines cases.
At sentencing, Appellant presented witnesses and asked the court to exercise
its "great discretion" to depart downward. The district court refused, stating:
I've heard your evidence. I have considered your arguments.
I've looked at each one of the bases for a downward departure to see if
it is justified either under the [G]uideline provisions as well as under
the case law interpreting those provisions. The departure on the basis
of lesser harms would not support the downward departure. The
departure based on aberrant behavior is not supported by the
[G]uideline provisions or the Eleventh Circuit authority interpreting
that provision.
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Likewise with respect to departure based on age and physical
condition. Again, as to departure based on loss of privilege to teach
exceptional children and finally with respect to departure based on
exceptional community service. Consequently, I deny the motion for
downward departure . . . . Taking all of them into consideration,
collectively, they would not warrant a downward departure.
II. DISCUSSION
We lack jurisdiction to review a sentencing court's refusal to depart downward
when the decision is based on the court's discretionary authority. United States v.
Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir. 1998). We do, however, have
jurisdiction if the sentencing court erroneously believes it lacks discretionary authority
to depart downward. Id. The basis for the sentencing court's denial of a departure
therefore has important consequences for our ability to review a refusal to depart.
Appellant contends the district court believed it had no authority to depart
downward because the court did not provide findings of fact, discuss the application
of the Guidelines to those facts, or state whether this case is atypical and outside the
heartland of sentencing cases. In the alternative, he argues we should infer the district
court believed it lacked discretionary authority to depart downward because the basis
for its refusal is ambiguous.
We join the other Circuits that have addressed this issue in holding that when
nothing in the record indicates otherwise, we assume the sentencing court understood
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it had authority to depart downward.1 See United States v. Rowen, 73 F.3d 1061, 1063
(10th Cir. 1996); Byrd, 53 F.3d at 145; United States v. Hurtado, 47 F.3d 577, 585 (2d
Cir. 1995); United States v. Pinnick, 47 F.3d 434, 439-40 (D.C. Cir. 1995); United
States v. Helton, 975 F.2d 430, 434 (7th Cir. 1992); United States v. Bailey, 975 F.2d
1028, 1035 (4th Cir. 1992); United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir.
1991); United States v. Garcia-Garcia, 927 F.2d 489, 490-91 (9th Cir. 1991).
Here, there is no indication the district court misapprehended its authority to
depart downward and no party argued the court lacked authority to depart. The court
did not express any ambivalence regarding its authority to depart and the evidence
does not otherwise reflect the district court misapprehended its authority. Cf. United
States v. Webb, 139 F.3d 1390, 1394-1395 (11th Cir. 1998) (holding the district court
misapprehended its authority where evidence strongly suggested court’s ambivalence
regarding its authority). We therefore assume the district court understood it had
authority to depart downward and simply decided not to exercise its discretionary
1
Our review is, of course, facilitated when the sentencing court states on the record
whether it exercised its discretion not to depart downward. See Sanchez-Valencia, 148 F.3d at
1274. Nonetheless, as long as there is no indication the sentencing court misapprehended its
authority, we will assume the sentencing court understood it had authority to depart downward.
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authority. Accordingly, we do not have jurisdiction to review the district court’s
decision.
AFFIRMED.
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