United States v. Joseph , 27 F. App'x 85 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
1-18-2002
USA v. Joseph
Precedential or Non-Precedential:
Docket 1-1561
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
Recommended Citation
"USA v. Joseph" (2002). 2002 Decisions. Paper 22.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/22
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NOT PRECEDENTIAL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. 01-1561
___________
UNITED STATES OF AMERICA
v.
EDISON JOSEPH,
Appellant
_______________________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Criminal No. 1-cr-00071-02
(Honorable Sylvia H. Rambo)
___________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 11, 2001
Before: BECKER, Chief Judge,
SCIRICA and GREENBERG, Circuit Judges
(Filed January 17, 2002)
______________
MEMORANDUM OPINION
______________
SCIRICA, Circuit Judge.
Defendant Edison Joseph pled guilty under a plea agreement to
conspiracy to
possess with intent to deliver more than fifty grams of crack cocaine and
one kilogram of
heroin in violation of 21 U.S.C. 846. Joseph was sentenced to 71 months
imprisonment followed by five years' supervised release. He was also
fined $650 and
ordered to pay a $100 special assessment.
The issue on appeal is whether the District Court abused its
discretion in only
departing downward from the 120 month mandatory minimum sentence and the
87 to
108 month guideline imprisonment range to a sentence of 71 months based on
defendant's substantial assistance.
I.
Edison Joseph sold cocaine and heroin for a drug trafficking
operation headed by
Fernando Candelario and Mario Luis Gonzalez. On February 7, 2000, Joseph
sold seven
grams of crack cocaine and 13 packets of heroin to an undercover officer
for $430.
Joseph was arrested on March 9, 2000. In post arrest statements, Joseph
admitted to
making drug sales from January to March of 2000. A co-defendant, Gabriel
Silva
Rosario, admitted to selling drugs with Joseph three or four times.
The District Court adopted the facts and sentencing guidelines in the
Presentence
Report, which set an initial offense level of 29 and placed Joseph within
criminal history
category I. Joseph's initial sentence guideline range was 87 to 108
months. But the
offense carries a statutory mandatory minimum sentence of 120 months. The
District
Court departed downward under U.S.S.G. 5K1.1 and 18 U.S.C. 3553(e).
(Substantial assistance). Joseph's adjusted offense level was 25 and the
applicable
sentence range was 57 to 71 months imprisonment. The District Court
sentenced Joseph
to 71 months imprisonment. Joseph contends the District Court should have
departed
even further based on his "minimal or minor" role in the conspiracy.
II.
We cannot review a District Court's discretionary denial of a
downward departure
under the sentencing guidelines. United States v. Denardi, 892 F.2d 269(3d Cir. 1989).
Nor do we review the extent of the downward departure. On errors of law
we have
plenary review. United States v. Torres, 251 F.3d 138, 145 (3d Cir.
2001). Although
Joseph alleges legal error, we see no merit to his contention. The
District Court
exercised its discretion in not considering further departure at
sentencing, despite
Joseph's failure to object to the presentence report.
The District Court adopted the factual findings and the guideline
application in
the presentence report. The District Court was only required to explain
why it was
imposing a sentence below the guideline range. 18 U.S.C. 3553(c). See
also Torres,
251 F.3d at 145 ("[18 U.S.C. 3553(c)] requires a sentencing judge to
justify explicitly
his or her decision to depart."). The District Court granted the downward
departure and
safety valve departure because of the government's 5K1 motion. As noted,
we lack
appellate jurisdiction to review the extent of the downward departure
under U.S.S.G.
3B1.2.
III.
For the foregoing reasons, we will dismiss the appeal for lack of
appellate
jurisdiction.
TO THE CLERK OF COURT:
Please file the foregoing memorandum opinion.
/s/ Anthony J. Scirica
Circuit Judge