United States of America v. Johnathan Ryan Jackson

*Honorable Jane A. Restani, Chief Judge, United States Court of International
Trade, sitting by designation.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4091
UNITED STATES OF AMERICA
v.
JOHNATHAN RYAN JACKSON,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 05-cr-00004)
District Judge: Honorable Paul S. Diamond
Submitted Under Third Circuit LAR 34.1(a)
September 28, 2006
Before: McKEE and AMBRO, Circuit Judges
RESTANI, * Chief Judge
(Opinion filed November 9, 2006)
ORDER AMENDING PUBLISHED OPINION
AMBRO, Circuit Judge
IT IS NOW ORDERED that the published Opinion in the above case filed
November 9, 2006, be amended as follows:

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On page 13, the paragraph beginning four lines from the bottom of the page
(beginning “The Eighth ...”) and carrying over to page 14 (ending “...discretionary denial
of a departure motion.6”), is hereby deleted in full and replaced with the following
paragraph. (Footnote 6 will remain at the end of this new paragraph.)
We have already ruled that, as it was pre-Booker, courts of appeals
post-Booker have no authority to review discretionary denials of departure
motions in calculating sentencing ranges. See Cooper, 437 F.3d at 332–33;
see also United States v. Burdi, 414 F.3d 216, 220 (1st Cir. 2005); United
States v. Puckett, 422 F.3d 340, 345 (6th Cir. 2005); United States v.
Frokjer, 415 F.3d 865, 874–75 (8th Cir. 2005); United States v. Sierra-
Castillo, 405 F.3d 932, 936–37 (10th Cir. 2005); Crawford, 407 F.3d at
1178. Not only because it is the precedent of this Court, but also because it
is our purpose to have the calculation of Guidelines ranges track pre-Booker
practice, we continue not to disturb a district court’s discretionary denial of
a departure motion.6
On page 14, footnote 6, replace the first full paragraph with the following:
Our lack of review on this issue, however, goes no further than step
two of Gunter, as step three requires our review of the sentence against the
several § 3553(a) factors, only one of which is the Guidelines range. See
infra Part II.B.
By the Court,
/s/ Thomas L. Ambro, Circuit Judge
Dated: November 17, 2006

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