United States v. Rudolph W. Underwood , 2 F. App'x 672 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1513
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Rudolph W. Underwood, also known * Eastern District of Arkansas.
as Rudy Underwood, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 7, 2001
Filed: March 1, 2001
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
After a jury found Rudolph Underwood guilty of bank fraud, in violation of 18
U.S.C. § 1344, the district court1 sentenced him at the bottom of the applicable
Guidelines range to 24 months imprisonment and 5 years supervised release.
Underwood appeals, challenging the district court’s refusal to grant his motion to
depart downward based on the effect his incarceration would have on his two minor
children. We affirm.
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The Honorable Susan Webber Wright, Chief Judge, United States District Court
for the Eastern District of Arkansas.
At sentencing, Underwood presented testimony that he had been awarded
custody of the two children following his divorce from their mother, he was highly
involved in their lives, and the children’s mother did not visit the children regularly, had
inflicted corporal punishment on them, and had “an uncontrollable temper.” Noting
that “the Guidelines expressly forbid” consideration of family circumstances, the
district court denied Underwood’s motion to depart.
We lack jurisdiction to review a district court’s discretionary decision not to
depart from the Guidelines. When a district court believes it lacks power to exercise
discretion, however, we have “jurisdiction either to confirm or reject the sentencing
court’s conclusion that it lacked authority to depart.” United States v. Evidente, 894
F.2d 1000, 1005 (8th Cir.), cert. denied, 495 U.S. 922 (1990). Given the district
court’s references to being forbidden from departing, we conclude that the court
believed it lacked authority.
While the Guidelines do not altogether forbid departure based on family
circumstances, the Commission has instructed in its policy statements that “[f]amily
ties and responsibilities and community ties are not ordinarily relevant in determining
whether a sentence should be outside the applicable guideline range.” USSG § 5H1.6,
p.s. After carefully reviewing the record, we are convinced that the circumstances here
would not support a downward departure because Underwood has not presented the
type of exceptional family circumstances that would make his case different from the
ordinary circumstances facing a family in which a parent is about to be incarcerated.
See United States v. Koon, 518 U.S. 81, 96 (1996); United States v. Kapitzke, 130
F.3d 820, 822 (8th Cir. 1997) (reversing downward departure to defendant who argued
his incarceration would place financial burden on wife to support their children and
would cause wife to divorce him; defendant did not show his family’s circumstances
were substantially different from those facing family of any other defendant about to
be incarcerated); United States v. Harrison, 970 F.2d 444, 447-48 (8th Cir. 1992)
(downward departure not permissible even though defendant’s incarceration would
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result in her grandchild, whom she had adopted and for whom she alone had been
caring, being put in custody of defendant’s adult daughter who allegedly abused drugs
and alcohol).
Accordingly, we affirm the judgment of the district court. We also grant the
government’s motion to strike the supplemental appendix, and we deny Underwood’s
pending pro se motions.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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