United States v. Graham

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

12-18-1995

United States of America v. Graham
Precedential or Non-Precedential:

Docket 94-1370

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 UNITED STATES COURT OFAPPEALS
FOR THE THIRD CIRCUIT
___________

No. 94-1370
___________

UNITED STATES OF AMERICA

v.

VINCENT K. GRAHAM
a/k/a
SEAN G. POWELL
a/k/a
SCOTT J. CHRISTENSEN
a/k/a
PETER J. BERGMANN
a/k/a
STEPHEN T. LUDWIG
a/k/a
CHARLES D. STUART
a/k/a
JOHN T. CONNELLY
a/k/a
PETER A. MARKELLOS
a/k/a
JOSEPH T. KELLY
a/k/a
THOMAS DAMUS, JR.
a/k/a
MICHAEL JOHNSON
a/k/a
DONALD CANALE

Vincent Graham,

Appellant
___________

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 91-cr-000163-1)

___________

Argued
September 11, 1995
Before: MANSMANN, SCIRICA and NYGAARD, Circuit Judges.

1
 (Filed December 18, 1995)
___________

Jerry S. Goldman, Esquire (Argued)
Jerry S. Goldman & Associates
1520 Locust Street
10th Floor
Philadelphia, PA 19102

Counsel for Appellant

Michael R. Stiles, Esquire
United States Attorney
Walter S. Batty, Jr.
Assistant United States Attorney
Chief of Appeals
Mary E. Crawley, Esquire (Argued)
Assistant United States Attorney
Roland B. Jarvis, Esquire
Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

Counsel for Appellee

___________

OPINION OF THE COURT
__________

MANSMANN, Circuit Judge.

In this criminal case, Vincent K. Graham appeals from

the sentence imposed after he pled guilty to charges of

conspiracy involving counterfeit securities and other related

charges pertaining to a scheme to defraud financial institutions.

Specifically, Graham asks us to decide whether the district court

incorrectly imposed restitution, pursuant to the Victim and

Witness Protection Act, 18 U.S.C. §§ 3579-3580 (1982), in light

of his financial inability to pay restitution. Because the

2
district court, utilizing the current AO Form 245B which has

subsequently been changed,0 indicated that the restitution

payments were to be made in installments which the probation

officer could establish and periodically modify, Graham contends

that the district court improperly delegated, to the probation

office, the authority to designate the timing and amount of

restitution payments.

In addition, Graham asserts that his sentencing hearing

was improperly tainted by information proffered to the court at

the sentencing hearing of Graham's co-defendant. Finally, we are

asked to address whether Graham's Sixth Amendment right to

counsel was denied as a result of the district court's allegedly

inadequate compensation of Graham's court appointed counsel

pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A(d).

We hold that the district court did not make the

necessary factual finding regarding Graham's financial ability to

comply with the restitution order and that AO Form 245B

improperly delegates to the probation office the determination of

the amount and timing of restitution installment payments. We

will thus vacate the judgment of the district court and remand

for further proceedings. We will dismiss the Criminal Justice

Act claim, couched as a violation of Graham's Sixth Amendment

right, for lack of jurisdiction.

0
Because this form may still be in use in some of the
district courts, we write to address this issue.

3
 I.

On or about December 9, 1992, David L. Wells and

Vincent K. Graham were arrested at a branch of the Meridian Bank

located in Upper Darby, Pennsylvania, while attempting to

withdraw money from an automatic teller machine. Pursuant to a

fraudulent scheme devised by Graham, Graham and his co-

conspirators passed counterfeit, forged bank checks by depositing

them in "dummy" bank accounts and withdrawing the proceeds before

the financial institutions were able to discover the fraud. In

order to effectuate this scheme, Graham and his co-defendants

placed advertisements in various newspapers soliciting the

general public to submit personal information in application for

employment with a fictitious company, "Transport Video East."

Graham and his co-conspirators established accounts with various

telephone answering services located in Pennsylvania, to receive

the telephone calls and applications in response to the various

solicitations as well as inquiries from the general public about

the non-existent jobs. When applicants inquired about the

advertised jobs, they were asked to provide personal information

such as social security numbers, driver's license numbers, etc.,

which Graham and the others subsequently used to create duplicate

drivers licenses and other forms of fraudulent identification.

Using this false identification, Graham and his co-

conspirators opened bank accounts at various financial

institutions. Typically, the bank accounts were opened through

the mail using the fraudulently obtained names and personal

information of the unsuspecting job applicants. By securing post

4
office boxes with private postal services, Graham and his co-

conspirators were able to obtain addresses for the bank accounts.

Utilizing this fraudulent scheme, Graham and his co-conspirators

deposited counterfeit checks totalling $162,000 into the various

bank accounts. They then withdrew or attempted to withdraw the

funds prior to the discovery of the fraudulent nature of the

transactions. According to the government, an aggregate amount

of $46,792.91 was withdrawn by Graham and his co-conspirators.

On August 17, 1993, a second superseding indictment was

filed charging Vincent K. Graham and two others with conspiracy

to make and utter counterfeit securities in violation of 18

U.S.C. § 371 (1 count); making and uttering counterfeit

securities in violation of 18 U.S.C. § 513(a) (40 counts); bank

fraud in violation of 18 U.S.C. § 1344(1) (14 counts); misuse of

social security documents in violation of 42 U.S.C. § 408(a)(7)

(18 counts); possession of false identification documents in

violation of 18 U.S.C. § 1028(a)(3) (2 counts); and aiding and

abetting in violation of 18 U.S.C. § 2. On September 10, 1993,

pursuant to a written plea agreement, Graham pled guilty to 23

counts of the sixty-three count indictment. The remaining counts

were dismissed on the government's motion.

Subsequently, Graham was sentenced to a term of forty-

six months of imprisonment on each count, to run concurrently,

followed by a term of three years of supervised release. The

district court also ordered Graham to pay a special assessment of

$1,300 and to pay restitution in the amount of $46,692.91,

jointly and severally with his co-defendants, in installments to

5
be established by the probation officer. We turn to Graham's

assertion that this order was inappropriate in light of his

inability to make restitution in the amount ordered by the court.

II.

Restitution is authorized by the Victim and Witness

Protection Act, 18 U.S.C. § 3663(a), as incorporated into the

Sentencing Guidelines, U.S.S.G. § 5E1.1. Section 3663(a)(1)

provides that "The court, when sentencing a defendant convicted

of an offense under this title . . ., may order, in addition to

. . . any other penalty authorized by law, that the defendant

make restitution to any victim of the offense." Section 3664(a)

requires that the court "consider the amount of the loss

sustained by any victim as a result of the offense, the financial

resources of the defendant, the financial needs and earning

ability of the defendant and the defendant's dependents, and such

other factors as the court deems appropriate." 18 U.S.C.

§3664(a). See also United States v. Seligsohn, 981 F.2d 1418,

1423 (3d Cir. 1992); United States v. Johnson, 816 F.2d 918, 924

(3d Cir. 1987). We exercise plenary review over whether an award

of restitution is permitted under law, but we review specific

awards for abuse of discretion. United States v. Seligsohn,
supra, 981 F.2d at 1421; United States v. Copple, 24 F.3d 535 (3d

Cir.) cert. denied, 115 S. Ct. 488 (1994).

A.

In applying the restitution provisions of the Victim

and Witness Protection Act, district courts must make specific

findings regarding the factual issues that are relevant to the

6
Act. United States v. Logar, 975 F.2d 958, 961 (3d Cir. 1992)

(quoting United States v. Palma, 760 F.2d 475, 480 (3d Cir.

1985)). In United States v. Logar, we identified the necessary

factual findings: (1) the amount of loss, (2) the defendant's

ability to pay and the financial needs of the defendant and the

defendant's dependents, and (3) the relationship between the

restitution imposed and the loss caused by the defendant's

conduct. Logar, 975 F.2 at 961. The government has the burden

of demonstrating by a preponderance of the evidence the amount of

loss sustained by a victim. United States v. Palma, 760 F.2d at

480; 18 U.S.C. § 3580(d). The defendant has the burden of

demonstrating, also by a preponderance of the evidence, his

financial needs and resources. Id. Indigency at the time of

sentencing is not a bar to ordering the appellant to pay

restitution. United States v. Hallman, 23 F.3d 821, 827 (3d

Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 216 (1994) (citing

United States v. Logar, 975 F.2d 958, 962 (3d Cir. 1992)). "The

order of restitution, on the other hand, may not be based on some

future fortuitous event that may befall the appellant, but must

be based on realistic expectations." Id.
Here the government agrees with Graham that, under

Logar, supra, the district court was required to make specific

findings regarding Graham's ability to pay restitution. The

government concedes that this was not done.0 Accordingly, we

0
The only explicit finding that the district judge made
regarding Graham's financial capacity was in connection with
Graham's ability to pay a fine. The district court, declining to
impose a fine, stated: "I don't believe you can pay a fine so

7
will remand the order of restitution to the district court so

that this finding can be made. In addition, on remand, the

district court should make specific findings of fact not only

concerning Graham's current financial status but also on his

ability to earn income in the future before the court sets an

appropriate amount of restitution, if any.0 See United States v.

Logar, 975 F.2d at 963.

I'm not imposing a fine." (App. 64). It is anomalous that the
district court concluded that Graham would be able to pay
approximately $46,000.00 in restitution if he is unable to pay
any fine, even in installments. Perhaps the district court found
that Graham would be unable to pay a fine in light of the amount
of restitution that Graham was ordered to make. In any event,
the lack of record findings makes these claims difficult to
review.
0
The presentence report summarizing Graham's educational
and vocational skills and his employment history indicated that
Graham completed a personal financial statement which did not
reveal any assets, but set forth liabilities of $3,600 and
indicated that since he has been incarcerated, Graham has had no
income or expenses. The presentence report indicated, however,
that Graham has stated the he realized about $4,000 from his
involvement in this case and that he used this money for living
expenses.

The government asserts that Graham may have assets that
are secreted. Graham and his conspirators received approximately
$46,000 as a result of their fraudulent scheme. This money has
not been recovered. Thus, on remand the court could determine
that there were assets that were secreted, provided that there is
evidence to support such a finding.

8
 B.

On remand, the district court must also designate the

timing and amount of the restitution payments. Pursuant to 18

U.S.C. § 3663(f)(1), in ordering restitution, "The court may

require that such defendant make restitution under this section

within a specified period or in specified installments."0

Utilizing AO Form 245B (Rev. 7/92), entitled Judgment

in a Criminal Case, the district court indicated, by placing an

"X" in the appropriate box, that the schedule of restitution

payments were to be made "in installments which the probation

officer shall establish and may periodically modify provided that

the entire financial penalty is paid no later than five years

after release from incarceration . . . ."0 We agree with the

government, and with Graham, that the district court, in this

manner, improperly delegated to the probation officer the

determination of the timing of the restitution installment

0
We do not read section 3663 as requiring that a judge
establish a payment schedule. On the contrary, 18 U.S.C.
§3663(f)(1) does not require courts to establish schedules of any
kind. Thus, a court is free to order that restitution be made in
a lump sum payment, if appropriate.
0
We are aware that AO Form 245B has been revised and
that the latest version of this form is dated 3/95. This new
form does not contain these provisions that allow delegation of
the determination of the schedule of payments. The U.S. Attorney
for the Eastern District of Pennsylvania (who was advised by the
Senior Deputy Chief U.S. Probation Officer) has informed us that
the District Court for the Eastern District of Pennsylvania
continues to use the old form for its judgment and commitment
orders, and will continue to do so until training is provided by
the National Fines Center. Although it is anticipated that the
Eastern District of Pennsylvania will receive its training in
April 1996, until this time, the district courts should not
utilize this form in such a manner as to delegate the timing and
amount of restitution payments to the probation officer.

9
payments. While the district court is always free to receive and

consider recommendations from the probation officer in this

regard, we believe that section 3663 does not permit a district

judge to delegate to the administrative staff these

specifications. So, too, must the court determine the extent to

which payment may be deferred. Accord United States v. Albro, 32

F.3d 173 (5th Cir. 1994); United States v. Ahmad, 2 F.3d 245 (7th

Cir. 1993).

C.

Finally, Graham contends that the district court failed

to determine the appropriate amount of restitution. Graham

suggests that the district court erred in its determination of

the amount of restitution because the court relied on the

probation officer's calculations of the amount of the loss,

rather than personally reviewing or examining the underlying

evidence.

In United States v. Logar, we held that,

notwithstanding estimates of loss in a presentence report, the

district judge must point to the evidence in the record

supporting the calculation of loss to the victims. 975 F.2d at

961-61. See also United States v. Copple, 24 F.2d at 549-50. In

Logar, the district court, without identifying any record

support, accepted the government's suggestion that $10 million

(which was the loss to investors estimated in the Presentence

Investigation Report) would constitute an appropriate amount of

10
restitution. We held that this was error and that a remand was

necessary.

Here, although the amount of the actual loss was

disputed, the district court accepted the figure that had been

calculated by the probation department because this figure was

based upon documentation that the probation department had

received from the financial institutions that suffered loss.0
0
The Federal Bureau of Investigation, (FBI), has
documented $46,692.91 in losses to the victims. Specifically
they can be broken down further:

South Carolina National Bank, 1628 Browning
Road Annex Building, Columbia, South Carolina
29226 - $16,804.17

First Union National Bank, P.O. Box 3008,
Raleigh, North Carolina 27602 - $4,992.70

Trust Company Bank, Security Department, P.O.
Box 4418, Atlanta, Georgia 27602 - $500.00

Mid-Atlantic National Bank (Continental Bank
is a subsidiary), P.O. Box 600 Edison, N.J.
08818 - $2,311.43

Firstrust Savings Bank, 1931 Cottman Avenue,
Philadelphia, PA 19111 - $4,950.00

Nations Bank of North Carolina, P.O. Box
27287, Raleigh, N.C. 27611-7287 - $3,504.89

Merchants Bank/Fidelity Bank, 26 South
Seventh Street, Allentown, PA 18101
- $8,136.78

Mellon/PSFS Melon Independence Center, 701
Market Street, Philadelphia, PA 19106
- $2,709.00

Corestates, P.O. Box 7618, Philadelphia PA
19101, Attention F.C.121020 - $2,291.02

Germantown Savings Bank, 1 Belmont Avenue,
Bala Cynwyd, PA 19004 - $400.00

11
This information had previously been supplied to and verified by

the FBI. (App. 52-54). Accordingly, the district court did not

err in relying on this information in its determination of the

amount of restitution.0

III.

Graham contends next that his sentencing hearing was

improperly tainted by allegations that were raised without notice

to him or the opportunity to respond or challenge their accuracy,

in violation of Graham's statutory and constitutional rights.0

Commonwealth Federal Savings Bank, P.O. Box
2190, 70 Valley Stream Parkway, Valley Forge,
PA 19482 - $92.92
0
Graham also contends that the district court erred in
not crediting Graham with the value of property already seized in
an allegedly related forfeiture proceeding. At his sentencing
hearing, Graham requested that the value of an automobile, a
Jaguar which was forfeited by the FBI, should be utilized to
reduce the outstanding and unreimbursed losses suffered by the
victims of Graham's crime. The district court did not offset the
aggregate amount of restitution that Graham and his co-defendants
were jointly and severally liable for by the value of the car,
apparently because the car belong to Graham's sister and because
it had been forfeited in a separate proceeding by the FBI.
Because we have no record of the forfeiture proceeding, we have
no record from which to review this claim. (App. 55-56).

Graham's remaining contention that, based upon the
facts of this case, the imposition of the restitution order was
disproportionate to the gravity of the offense, and therefore,
violative of the Eighth Amendment protection against excessive
fines is without merit.
0
Unlike the concurring opinion, we believe our
jurisdiction to review Graham's sentence lies pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) because Graham has
alleged that his sentence was imposed in violation of law, that
is, in violation of his constitutional rights.

This case is unlike the situation confronting us in
United States v. Perakis, 937 F.2d 110 (3d Cir. 1991), in which

12
Apparently, one half-hour prior to the imposition of Graham's

sentence, Graham's codefendant, David Lee Wells, was sentenced in

a separate proceeding. At Wells' sentencing, Wells' attorney

advised the court:
He [Wells] placed himself at some risk of
danger by cooperating and in fact was
threatened at some point in the case. One of
the agents, Mr. Henry, is here today, helped
to find Mr. Wells a hotel in New Jersey where
he stayed for a while when a threat was made
from the lead co-defendant and in fact
encouraged and was fully aware that Mr. Wells
was going down south to live with family for
most of the summer and the reason for that

we were asked to review a sentencing court's discretionary
refusal to impose a substitute detention under the Guidelines
(section 5C1.1(c)(2)) and is also unlike the situation in United
States v. Denardi, 892 F.2d 269 (3d Cir. 1990), in which we
lacked jurisdiction over Denardi's appeal from a sentencing
decision because that appeal was based on the district court's
discretionary refusal to depart downward from the sentencing
guidelines. Because Graham does not challenge the district
court's discretion to set a sentence anywhere within a properly
calculated guidelines range, Denardi, supra, Perakis, supra and
the cases cited in the concurring opinion from other courts of
appeals (footnote 1, p. __ infra) are not implicated here.yUnlike
the concurring opinion, we believe our jurisdiction to review
Graham's sentence lies pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a)(1) because Graham has alleged that his sentence was
imposed in violation of law, that is, in violation of his
constitutional rights.

This case is unlike the situation confronting us in
United States v. Perakis, 937 F.2d 110 (3d Cir. 1991), in which
we were asked to review a sentencing court's discretionary
refusal to impose a substitute detention under the Guidelines
(section 5C1.1(c)(2)) and is also unlike the situation in United
States v. Denardi, 892 F.2d 269 (3d Cir. 1990), in which we
lacked jurisdiction over Denardi's appeal from a sentencing
decision because that appeal was based on the district court's
discretionary refusal to depart downward from the sentencing
guidelines. Because Graham does not challenge the district
court's discretion to set a sentence anywhere within a properly
calculated guidelines range, Denardi, supra, Perakis, supra and
the cases cited in the concurring opinion from other courts of
appeals (footnote 1, p. __ infra) are not implicated here.

13
 was so that he could be protected from any
danger to himself because of his cooperation.

App. 68. (During Wells' sentencing Graham is referred to as the

lead co-defendant. Id.) Graham believes that this information

was prejudicial to him because when Graham was subsequently

sentenced, he was sentenced to a term of forty-six months, the

maximum sentence within his Guidelines range.

We reject Graham's suggestion that his sentence was

impermissibly tainted by Wells' sentencing proceeding. There is

nothing in the record of Graham's sentencing hearing that

suggests that the district court relied on the statements

proffered during Wells' sentencing hearing in imposing Graham's

sentence. (App. 65-70). We are confident that experienced

district judges are able to avoid the influence of inappropriate,

irrelevant or extraneous information.

Because we do not think that the record in this case

establishes a violation of Graham's confrontation or due process

rights, we do not need to explore here the parameters of a

criminal defendant's confrontation and due process rights at the

sentencing stage.

14
 IV.

Graham's final assertion relates to the application of

the Criminal Justice Act in this case. The provisions of the

Criminal Justice Act, 18 U.S.C. § 3006A (1976), govern the

payment of claims for compensation for services rendered and

expenses incurred by attorneys appointed to represent federal

defendants financially unable to obtain counsel. Where

representation is furnished before a district court, a claim for

compensation and reimbursement, supported by a sworn written

statement, is submitted to that court. § 3006A(d)(4). Pursuant

to section 3006A(d)(4) the district court "shall fix the

compensation and reimbursement to be paid to the attorney ...."

Id. The Criminal Justice Act limits compensation to specified

maximum amounts. § 3006A(d)(2). Payments in excess of these

amounts may be made, however "for extended or complex

representation whenever the court in which the representation was

rendered . . . certifies that the amount of the excess payment is

necessary to provide fair compensation and the payment is

approved by the chief judge of the circuit." § 3006A(d)(3).

Graham contends that his Sixth Amendment right to

counsel was denied due to the district court's implementation of

the Criminal Justice Act here which included delays in the

disbursement of legal fees to court appointed counsel and an

award of compensation which was substantially less than counsel's

actual costs for representing Graham in this case.

Notwithstanding defense counsel's apparent dissatisfaction with

the timing and amount of his fee award under the Criminal Justice

15
Act, the present record reveals that this did not impact upon the

representation Graham received.

Thus, counsel's attempt to convince us to review the

payment of his legal fees under the Criminal Justice Act as

violative of Graham's Sixth Amendment rights must fail. To the

extent that counsel is personally dissatisfied with the fee

awarded by the district court pursuant to 18 U.S.C. §3006A(d)(3),

we note that this is not the proper forum for counsel's claims.0

We do not have jurisdiction to entertain an appeal from an award

of compensation and expenses under the Criminal Justice Act. In

Landano v. Rafferty, 859 F.2d 301 (3d Cir. 1988), we held that a

district court's order denying counsel's request for retroactive

appointment and waiver of the maximum allowable fee under the

Criminal Justice Act constituted rulings which ultimately

implicated the amount of compensation to be allowed counsel by

the district judge and as such were rulings that were not final

decisions within the meaning of 28 U.S.C. §1291 because the

district court's decision determining the amount of compensation

is essentially administrative in nature. Accordingly, we will

dismiss this claim for lack of appellate jurisdiction.

V.

0
If counsel is dissatisfied with the fee awarded by the
court pursuant to 18 U.S.C. § 3006A(d)(3), counsel should seek
reconsideration of the award before the district court.

16
 For the foregoing reasons we will vacate the Judgment

in a Criminal Case entered by the district court and remand for

resentencing.

17
United States v. Graham, No. 94-1370

NYGAARD, Circuit Judge, concurring.

I write separately because I conclude that we should

not consider the issue the majority reaches in Section III of its

opinion.

18 U.S.C. § 3742(a) provides that a defendant may only

file a notice of appeal of a sentence when it is imposed: (1) in

violation of law; (2) through an incorrect application of the

guideline; (3) in excess of the guidelines; or (4) where there is

no guideline and the sentence is plainly unreasonable. None of

those four conditions apply here.

Graham was sentenced to prison for a term of 46 months,

a sentence within, albeit at the top of, his guideline range. He

does not allege error in the calculation of his guideline range,

nor that his presentence investigation report contained anything

improper. Moreover, he does not take issue with the sentencing

guideline range of 37 to 46 months and concedes that the district

court sentenced him within the appropriate guideline range.

Graham only speculates on appeal that the district

court may have considered factors to which Graham did not have an

opportunity to respond. Inasmuch as the sentencing range is

under 24 months, the district court was not required to give

reasons for its decision to sentence Graham at the top of the

guideline range. See 18 U.S.C. § 3553(c). Nonetheless, even

following an independent review of the record, I cannot find

18
evidence of any impropriety that would allow us to speculate that

the district court may have violated the law in sentencing

Graham. Hence, I conclude that Graham has failed to show any

error that satisfies the requisites of 18 U.S.C § 3742(a).

Section 3742 is a gatekeeping provision. Congress

provided it to establish "a limited practice of appellate review

of sentences in the Federal criminal justice system" (emphasis

supplied), that would "preserve the concept that the discretion

of a sentencing judge has a proper place in sentencing and should

not be displaced by the discretion of an appellate court." S.

Rep. No. 225, 98th Cong., 2d Sess. 149-50 (1983), reprinted in

1984 U.S.C.C.A.N. 3182, 3332-33.

My view of the limited appellate review of guideline

sentences is further supported in the legislative history of

§3742:
Appellate courts have long followed the
principle that sentences imposed by district
courts within legal limits should not be
disturbed. . . . [The Sentencing Reform Act
is] intended to afford enough guidance and
control of the exercise of [district court]
discretion to promote fairness and
rationality, and to reduce unwarranted
disparity, in sentencing. Section 3742
accommodates all of these considerations by
making appellate review of sentences
available equally to the defendant and the
government, and by confining it to cases in
which the sentences are illegal, are imposed
as the result of an incorrect application of
the sentencing guidelines, or are outside the
range specified in the guidelines and
unreasonable.

19
S. Rep. No. 225, supra, at 150, 1984 U.S.C.C.A.N. at 3333

(footnote omitted).

In United States v. Perakis, 937 F.2d 110 (3d Cir.

1991), we held that we did not have jurisdiction to review a

sentencing court's discretionary refusal to grant substitute

detention under U.S.S.G. § 5C1.1(c)(2). We held that unless one

of the "four necessary circumstances exist to permit . . .

appeal," we do not have jurisdiction to review a district court's

decision as long as its sentence remains within the boundaries of

the guidelines. 937 F.2d at 111. In Perakis we were following

the lead of United States v. Denardi, 892 F.2d 269, 271-72 (3d

Cir. 1989), in which we held that § 3742(a) does not authorize an

appeal from a district court's discretionary refusal to depart

from the applicable guidelines range.

Although the precise issue presented to us here was not

decided in either Perakis or Denardi, once we determine that the

district court committed no error of law, I suggest that both

cases counsel against affirming the district court with regard to

the allegation of error addressed in this portion of the appeal.

I would dismiss the appeal with respect to this allegation of

error, rather than affirm the judgment of the district court. In

reaching this conclusion, I would join eight other courts of

appeals that have similarly decided the question.0

0
See United States v. Garrido, 38 F.3d 981, 986 (8th Cir. 1994);
United States v. Mihm, 13 F.3d 1200, 1205 (8th Cir. 1994)
("Because the district court then imposed a sentence within the
range, we have no jurisdiction to review the sentence."); United
States v. Woodrum, 959 F.2d 100, 101 (8th Cir. 1992) (per curiam)
("A sentence is not reviewable merely because it is at the top of

20
a properly calculated Guideline range."); United States v. Lopez,
974 F.2d 50, 53 (7th Cir. 1992) ("Courts have great flexibility
in picking a sentence within the range."); United States v.
Garcia, 919 F.2d 1478, 1482 (10th Cir. 1990) ("We are unwilling
to scrutinize sentencing justifications offered by a district
court when the sentence is within an admittedly appropriate range
unless those justifications implicate 18 U.S.C. § 3742(a)(1) or
(2)."); United States v. Vega-Encarnacion, 914 F.2d 20, 25 (1st
Cir. 1990) (We have "no appellate jurisdiction to consider a
sentence that was within the applicable guideline range and was
correctly determined."), cert. denied, 499 U.S. 977 (1991);
United States v. Porter, 909 F.2d 789, 794 (4th Cir. 1990);
United States v. Pelayo-Bautista, 907 F.2d 99, 101-102 (9th Cir.
1990); United States v. Tucker, 892 F.2d 8, 11 (1st Cir. 1989)
(The legislative history "further implies that Congress did not
intend to allow an appeal from a sentence within the
Guidelines."); United States v. Colon, 884 F.2d 1550, 1555 (2nd
Cir. 1989) ("Congress's failure to provide appellate review of
sentences within the Guidelines correctly calculated was thus a
conscious decision consistent with its overall purpose. . . . If
not inexorable, the provision of appellate review solely for
departures is understandable. . . . Sentences within the
Guidelines may be deemed to be reasonable and within the
exclusive discretion of the sentencing court solely because of
the Commission's blessing of the permissible range."), cert.
denied, 493 U.S. 998 (1989). The Eleventh Circuit has taken a
unique approach, although the effect is identical. See United
States v. Fossett, 881 F.2d 976, 979 (11th Cir. 1989) (A sentence
is a final decision within the meaning of 28 U.S.C. § 1291, and
hence, we have jurisdiction. 18 U.S.C. § 3742 "does not regulate
the jurisdiction of the courts of appeals over appeals
themselves; rather section 3742 defines the claims that the
courts of appeals may hear in reviewing an appeal."). See also
U.S.S.G. § 5C1.1(a) ("A sentence conforms with the guidelines for
imprisonment if it is within the minimum and maximum terms of the
applicable guidelines range.").

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