Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-28-2007
USA v. McDowell
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4072
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"USA v. McDowell" (2007). 2007 Decisions. Paper 1559.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4072
UNITED STATES OF AMERICA,
v.
JAMES E. MCDOWELL,
Appellant.
On Appeal from the United States District Court
for the District of Delaware
(No. 04-cr-48)
District Judge: Honorable Joseph J. Farnan, Jr.
Submitted Under Third Circuit LAR 34.1(a),
January 23, 2007
Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges
(Filed: February 28, 2007)
_____
OPINION OF THE COURT
FUENTES, Circuit Judge.
The sole issue raised in this appeal is whether the District Court erred in refusing
to grant a downward departure in imposing sentence. For the reasons set forth below, we
will dismiss the appeal for lack of jurisdiction.
Appellant James McDowell pleaded guilty to one count of interstate transportation
of child pornography in violation of 18 U.S.C. § 2252A(a)(1). On August 2, 2005, the
District Court sentenced McDowell to 87 months’ imprisonment, at the low end of a
guideline range of 87 to 108 months. In imposing sentence, the District Court rejected
McDowell’s motion for a downward departure for post-offense rehabilitation, diminished
capacity, and minimal threat to society. As the District Court stated to McDowell at the
sentencing hearing:
I have, in child pornography cases, tried to always determine whether the
defendant was viewing child pornography as opposed to . . . reaching out to
children or engaging children in addition to viewing . . . Where there’s been
a reaching out, I, like the other judges of the court, have sentenced within
the guidelines. The facts of your case indicate that you reached out . . . The
presentence report sets forth in great detail what it was you were engaged
in. So I can’t find a reason to exercise my discretion and sentence you
outside of the guideline.
(App. at 52.)
The foregoing quote makes plain that the District Court was well aware of its
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discretionary authority to grant a downward departure, but simply chose not to based on
the circumstances presented. “It is well-established in this Court that we lack jurisdiction
to review the merits of a district court’s discretionary decision to refuse a downward
departure under the Sentencing Guidelines once we determine that the District Court
properly understood its authority to grant a departure.” United States v. Minutoli, 374
F.3d 236, 239 (3d Cir. 2004); see also United States v. Cooper, 437 F.3d 324, 332-33 (3d
Cir. 2006) (holding that limitations on appellate review of district court’s discretionary
decision to deny downward departure still apply post-Booker).
Accordingly, we will dismiss the appeal for lack of jurisdiction.
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