United States of America v. Martin Kaplan, a/k/a Hurley Haines a/k/a Samaj McBride Martin Kaplan

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
NO. 01-1989
__________
UNITED STATES OF AMERICA
v.
MARTIN KAPLAN,
a/k/a Hurley Haines
a/k/a Samaj McBride
Martin Kaplan,
Appellant
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 00-cr-00597)
District Judge: Honorable R. Barclay Surrick
__________
Submitted Under Third Circuit LAR 34.1(a)
on April 23, 2002
Before: SCIRICA, RENDELL, and NOONAN*, Circuit Judges,
(Filed: April 25, 2002)
__________
OPINION OF THE COURT
__________
____________________
*The Honorable John T. Noonan, Jr., Senior Circuit Judge for the Ninth Circuit, sitting
by designation.
RENDELL, Circuit Judge.
Appellant Martin Kaplan appeals from judgment of conviction and sentence
entered by the District Court on April 19, 2001. Because we write only for the parties,
we need only briefly recount the relevant facts and procedural history underlying this
appeal. Appellant asserts jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C.
3742, but as explained below we are without jurisdiction to hear Kaplan’s first claim.
His second claim lacks merit. We will affirm.
Kaplan was charged on September 27, 2000 with four criminal counts related to
the possession of narcotics and a firearm. He subsequently pled guilty to three counts,
pursuant to a plea agreement. On April 17, 2001 he was sentenced by the District Court
to 210 months in prison, to be followed by eight years supervised release. The sentence
was based on an offense level of 32 and a criminal history category of VI. Kaplan
appeals from the sentence claiming that the District Court erred in not departing
downward from the sentencing guidelines based on his argument that his designation as a
career offender over-represented the seriousness of his criminal history and/or the
likelihood that he would commit crimes in the future. Kaplan’s second contention is that
the District Court erred in applying a 2-level enhancement to his offense level based on
his possession of a gun.

-- 1 of 2 --

The District Court was aware that it had the authority to grant Kaplan’s request for
a downward departure and acted within its discretion in denying this request. Under
these circumstances, we lack jurisdiction to review the district court’s sentence. United
States v. Torres, 251 F.3d 138, 151-52 (3d Cir. 2001).
As to Kaplan’s separate claim that the district court erred in calculating a 2-level
enhancement of his criminal offense level based on the gun possession count, after
reviewing the record, we conclude that there was no error in using Kaplan’s gun
possession conviction to enhance his criminal offense level pursuant to U.S.S.G 2D1.1
(b) (1).
Accordingly, we will AFFIRM the District Court’s Judgment and Conviction
Order entered on August 19, 2001.
___________________________
TO THE CLERK OF COURT:
Please file the foregoing Not Precedential Opinion.
/s/Marjorie O. Rendell
Circuit Judge

-- 2 of 2 --