United States of America v. Christopher Cefalo

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3045
___________________
UNITED STATES OF AMERICA
v.
CHRISTOPHER CEFALO, Appellant
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Crim. No. 00-cr-00195)
District Judge: Honorable William J. Nealon
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
April 25, 2002
Before: BECKER, Chief Judge, SCIRICA and RENDELL,
Circuit Judges.
(Filed: May 3, 2002)
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OPINION
_______________________
BECKER, Chief Judge.
This appeal by defendant Christopher Cefalo from a judgment in a criminal case
entered pursuant to a plea agreement presents the oft recurring question whether a
sentencing court that declined the invitation of the defendant to depart downward from
the Guideline Range under U.S. Sentencing Guideline 5K2.0 understood that it had
authority to depart but exercised its discretion not to, or rather was ruling (as a matter of
law) that it lacked power to depart. The problem frequently arises where, as here, the
District Court has already exercised its discretion to depart downward under 5K1.1 of
the Guidelines (on account of the defendant’s cooperation) and plainly thinks that that
departure was enough, but does not clarify its position under 5K2.0. The generally
applicable rule is stated in United States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994),
where we held that where it is impossible to tell whether the district court’s ruling is
based upon the proper exercise of discretion or an improper interpretation of the
applicable legal standard, the correct course of action is to vacate the sentence and
remand to the district court for clarification and reconsideration of its ruling.
In this case Cefalo made a strong argument for a downward departure additional
to that under 5K1.1 based upon his alleged vulnerability to abuse in prison. See United
States v. Yeaman, 248 F.3d 223, 232 (3d Cir. 2001), petition for certiorari filed Nov. 15,
2001 (No. 01-697). In support, Cefalo presented evidence regarding his sexual
orientation, his frail physique, and his history of mental illness, described at length in the
margin.
In ruling on the request, the Court stated:
Here the Government, though, in recognition of his
cooperation, has moved to cut that sentence in half, down to
ten years. And we have two deaths here, two deaths from
heroin supplied by this defendant. And, to my knowledge,
there’s been no other cases in this District that I’m aware of
where two deaths resulted from heroin supplied by one

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defendant. There have been those where one death resulted
and they have gotten at least ten years. There isn’t one that
got less than that . . . So I think the Government has been
very fair. I think you struck a great bargain in getting them to
move for a downward departure of ten years. So I’ll grant the
Government’s motion for downward departure and I’ll deny
the defense motion for additional.
As the foregoing text illustrates, the Court did not make the clear statement counseled by
Mummert. That said, we are satisfied that it was aware of its authority to depart
downward.
First, the government in its papers, acknowledged that the district court has the
discretion to depart from the Sentencing Guidelines on this basis:
Although it is not mentioned as a departure ground in the
Sentencing Guidelines, unusual vulnerability to abuse in
prison may be a ground for a departure, but should be
reserved for extraordinary cases. United States v. Wilke, 156
F.3d 759, 753 (7th Cir. 1998); United States v. Drew, 1331
F.3d 1269, 1271 (8th Cir. 1997); United States v. Maddox, 48
F.3d 791 (4th Cir. 1995). . . .
Second, at the Sentencing Hearing, the defense moved into evidence the sixteen-
page letter from its expert Dr. Atkins to defense counsel about Cefalo’s vulnerability, see
supra n. 1, which the court admitted; it then specifically held in abeyance the
government’s motion for downward departure while it listened to the testimony of Dr.
Atkins on the defense motion about his evaluation of Cefalo.
Third, during the course of Dr. Atkins’ testimony, the District Court stated that it
had read his report, and then asked a series of questions about Dr. Atkins’ conclusions,
including: whether he would come to a different conclusion if Cefalo had a larger build;
whether release from prison would present problems for Cefalo; whether chemical
treatment would help Cefalo; how the treatment Cefalo had received was inadequate;
and, what treatment Dr. Atkins would have provided to Cefalo if Cefalo had been his
patient. Moreover, the Court asked Atkins about his prior testimony in the Middle
District of Pennsylvania; what factors make Cefalo’s case so extraordinary; the nature of
his family’s mental disorders; what Dr. Atkins would consider an appropriate sentence;
whether Dr. Atkins had testified in a case where there were two deaths from heroin
distribution; and the resources available in a federal prison for someone like Cefalo.
Fourth, the issue was then argued by counsel.
Under these circumstances, we are satisfied that the District Court understood its
authority to depart and, although neglecting to make its ratio decidendi clear, exercised
its discretion not to do so. Cf. United States v. Castano-Vasquez, 266 F.3d 228, 234 (3d
Cir. 2001) ("[A] district court . . . not . . . obligated to explain its refusal to depart
downward."); United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991) ("[A]
sentencing court does not commit reversible error under the Sentencing Reform Act by
failing to state expressly on the record that it has considered and exercised discretion
when refusing a defendant’s requested downward departure under the Guidelines.").
Under our jurisprudence, we are constrained to dismiss the appeal for lack of appellate
jurisdiction. See United States v. Denardi, 892 F.2d 269, 271 (3d Cir. 1989).
Alternately, if Cefalo’s argument is construed as challenging the extent of the downward
departure that was given, the decision to deny a further downward departure is also not
subject to appellate review. United States v. Torres, 251 F.3d 138, 151-52 (3d Cir.
2001).
The appeal will be dismissed. _______________________
TO THE CLERK:
Please file the foregoing opinion.
BY THE COURT:
s/s Edward R. Becker
Chief Judge

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