United States v. Paulk , 66 F. App'x 309 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
4-4-2003
USA v. Paulk
Precedential or Non-Precedential: Non-Precedential
Docket 02-2538
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-2538
UNITED STATES OF AMERICA
v.
SIMIAN PAULK,
Appellant
On Appeal from the United States District Court
For the District of New Jersey
(D.C. No. 01-cr-373-12 )
The Honorable Jerome B. Simandle, District Judge
Submitted Under Third Circuit LAR 34.1 (a)
April 1, 2003
Before: MCKEE, SMITH, and COWEN, Circuit Judges
(Filed: April 4, 2003)
______________________
OPINION
______________________
SMITH, Circuit Judge:
In this appeal, Appellant Simian Paulk argues that his criminal history category of
VI significantly over-represents the seriousness of his criminal history, and that the
District Court abused its discretion under the United States Sentencing Guidelines
(hereinafter “the Guidelines”) when it denied his motion for downward departure pursuant
to U.S.S.G. § 4A1.3 (2001) and sentenced him to 262 months of imprisonment. Because
the record makes clear that the District Court was aware of its authority under the
Guidelines to depart downward, but exercised its discretion not to do so, we will dismiss
Paulk’s appeal for lack of jurisdiction.
Paulk pleaded guilty to conspiracy to distribute and possess with intent to distribute
more than 50 grams of cocaine base.1 The District Court determined that Paulk was a
career offender pursuant to U.S.S.G. § 4B1.1, because he had two prior convictions for
controlled substance offenses, and the instant offense was also a controlled substance
offense. Paulk contends that his designation as a “career offender” overstates the severity
of his criminal history, and that the District Court should have departed downward. To
support his view, he cites United States v. Shoupe, 35 F.3d 835, 836 (3d Cir. 1994), where
we held that a sentencing court may depart downward on both a defendant’s offense level
and criminal history designation if the defendant’s “criminal offender” status overstates the
severity of his criminal history and likelihood of recidivism. As we recognized in United
States v. McQuilkin, 97 F.3d 723 (3d Cir. 1996), the Shoupe decision was grounded in
U.S.S.G. § 4A1.3, a policy statement which provides: “If reliable information indicates that
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Paulk and eleven co-defendants pled guilty to knowingly and intentionally conspiring and
agreeing with one another and with others to distribute and to possess with intent to
distribute controlled substances, contrary to 21 U.S.C. § 841(a)(1), in violation of 21
U.S.C. § 846. Paulk himself pled guilty to conspiracy to distribute and possess with intent
to distribute at least 150 grams but less than 500 grams of cocaine base.
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the criminal history category does not adequately reflect the seriousness of the defendant’s
past criminal conduct or the likelihood that the defendant will commit other crimes, the
court may consider imposing a sentence departing from the otherwise applicable guidelines
range.” U.S.S.G. § 4A1.3. The policy statement and Shoupe simply indicate that a district
court may, but is not required to, grant a departure under such circumstances.
This Court lacks jurisdiction to entertain Paulk’s appeal because the District Court
properly exercised its discretion to deny Paulk’s motion for a downward departure. Our
jurisdiction to consider Paulk’s argument that he is entitled to a downward departure based
on over-representation of his criminal history category depends on the basis for the
District Court’s ruling. United States v. Stevens, 223 F.3d 239, 247 (3d Cir. 2000);
United States v. Denardi, 892 F.2d 269, 271-72 (3d Cir. 1989). Where a district court’s
ruling is based on the court’s belief that a departure on the grounds proffered by the
appellant is largely impermissible, we have jurisdiction “to determine whether the district
court’s understanding of the law was correct.” Stevens, 223 F.3d at 247 (citing United
States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994)). We lack jurisdiction to review a
refusal to depart downward when a district court, knowing it may do so, nonetheless
determines that departure is not warranted. Stevens, 223 F.3d at 247; McQuilkin, 97 F.3d
at 729l; Denardi, 892 F.2d at 272.
The District Court made clear that it understood its legal authority to depart
downward under § 4A1.3, but determined that departure was not warranted. The Court
stated that “I recognize that I have the ability to depart downward under § 4A1.3 if Category
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VI overstates the defendant’s criminal history,” but declined to depart given that Paulk was a
“career criminal drug dealer” who “lacks the ability to conform his behavior to law and
[whose] chance of recidivism is great.” This was a proper exercise of discretion and we
lack jurisdiction to review Paulk’s appeal.
For the foregoing reasons, the judgment of the District Court will be affirmed.
TO THE CLERK:
Please file the foregoing Opinion.
/s/ D. Brooks Smith
Circuit Judge
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