United States v. Easterling , 569 F. App'x 19 ( 2014 )

SUMMARY ORDER

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED that the appeal is DISMISSED.

Defendant-Appellant Anthony Henry (“Henry”) pled guilty to one count of conspiracy to possess with intent to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(B). The district court sentenced Henry principally to 72 months’ imprisonment. Henry appeals his sentence, asserting that the district court erred in denying his request for a downward departure from the applicable range under the United States Sentencing Guidelines. We assume the parties’ familiarity with the facts and the procedural history.

“[A] refusal to downwardly depart is generally not appealable.” United States v. Cuevas, 496 F.3d 256, 268 (2d Cir.2007). “Claims that the district court erred in refusing to depart are not cognizable on appeal in the absence of substantial indication that the district judge believed she lacked authority to depart or an indication that a violation of law occurred.” United States v. Jackson, 658 F.3d 145, 153-54 (2d Cir.2011); see United States v. Scott, 387 F.3d 139, 143 (2d Cir.2004) (holding that a district court’s decision is appealable “where the defendant shows that a violation of law occurred, that the Guidelines were misapplied, or that the refusal to depart was based on the sentencing court’s mistaken conclusion that it lacked the authority to depart”).

Henry’s sole argument on appeal is that the district court erred in denying his request for a horizontal departure under U.S.S.G. § 4A1.3(b) from Criminal History II to Criminal History I, because Criminal History II substantially overrepresents the seriousness of his past criminal conduct. This is precisely the type of appeal over which we lack jurisdiction. See United States v. Desena, 260 F.3d 150, 159 (2d Cir.2001) (holding that district court’s denial of motion to downwardly depart under U.S.S.G. § 4A1.3 is not appealable where there was “no indication that [the district court] mistakenly believed [that it] lacked the authority to depart as a matter of law.”); United States v. Ogman, 535 F.3d 108, 111(2d Cir.2008) (per curiam). Henry’s attempt to reframe his appeal to argue that the district court’s denial was a misapplication of the Guidelines, because the district court should have “considered] a downward departure from the guidelines” under United States v. Mishoe, 241 F.3d 214, 218 (2d Cir.2001), is unavailing. Mishoe concerned the government’s appeal from a decision granting a downward departure and did not purport to identify factors that should generally be considered in cases involving the claim that a particular criminal history category overstates the seriousness of a defendant’s criminal past. See id. The record demonstrates, moreover, that the district court understood its authority to downwardly depart and declined to exercise this authority after considering the circumstances of Henry’s case and criminal history. Because Henry’s appeal thus amounts to a dispute with the district court’s decision not to downwardly depart from the applicable Guidelines range, we lack jurisdiction to review his appeal. See Jackson, 658 F.3d at 153-54. Accordingly, we dismiss it.

We have reviewed Henry’s remaining arguments and find them to be without merit. For the foregoing reasons, Henry’s appeal is DISMISSED.