[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13988 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 3, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:11-cr-00145-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD D. GUERARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(February 3, 2012)
Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Richard Guerard appeals his 52-month sentence, imposed after he pleaded
guilty to one count of conspiring to commit bank fraud, in violation of 18 U.S.C.
§ 371. The district court correctly calculated an applicable guidelines range of
46–57 months imprisonment. The court then denied the government’s motion for
a downward departure based upon Guerard’s substantial assistance after
concluding that Guerard had already received substantial benefit from the plea
agreement. The district court specifically pointed out that, had Guerard been
found guilty of any count in the indictment, which charged a number of bank fraud
offenses under 18 U.S.C. § 1344, he would have faced a much higher guidelines
range of 87–108 months imprisonment.
On appeal, Guerard shows that, had he pleaded guilty to any one count in
the indictment, his applicable guidelines range would have been only 51–63
months imprisonment, not 87–108 months imprisonment. For this reason, he
argues, the district court’s finding that he substantially benefitted by pleading
guilty was clearly erroneous. Accordingly, Guerard claims that his sentence is
procedurally unreasonable because the district court relied on a clearly erroneous
factual finding when it denied the government’s motion for a downward departure.
We are required to examine our jurisdiction sua sponte, and do so under de
novo review. United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). This
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jurisdictional inquiry reveals that, under our prior precedent, we lack jurisdiction
to consider Guerard’s challenge of the district court’s denial of the government’s
downward departure motion. Where the district court understood it had the
authority to grant a downward departure, as the record indicates was the case here,
our precedent dictates that we lack jurisdiction to review the court’s decision to
deny the departure. United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir.
2006). This jurisdictional rule encompasses decisions, such as in this case, to
deny a motion for a downward departure based upon a defendant’s substantial
assistance. United States v. Willis, 649 F.3d 1248, 1258–59 (11th Cir. 2011).
Lacking jurisdiction to review the district court’s denial of the downward
departure motion, we must affirm Guerard’s sentence.
AFFIRMED.
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