United States of America v. Anthony D’angelico

PRECEDENTIAL
IN THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
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No. 03-3537
________________
UNITED STATES OF AMERICA
v.
ANTHONY D’ANGELICO,
Appellant
_______________________________
On Appeal From the United States District
Court For the Eastern District
of Pennsylvania
(D.C. No. 02-cr-00738)
District Judge: Honorable Michael M.
Baylson
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Submitted Under Third Circuit LAR 34.1(a)
June 28, 2004
Before: AMBRO, BECKER and
GREENBERG, Circuit Judges
(Filed: July 19, 2004)
PATRICK L. MEEHAN, ESQ.
United States Attorney
LAURIE MAGID, ESQ.
Deputy United States Attorney for
Policy and Appeals
ROBERT A. ZAUZMER, ESQ.
Assistant United States Attorney
Senior Appellate Counsel
FRANCIS C. BARBIERI, JR., ESQ.
Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee
MAUREEN KEARNEY ROWLEY, ESQ.
Chief Federal Defender
DAVID L. McCOLGIN, ESQ.
Assistant Federal Defender
Supervising Appellate Attorney
ELAINE DeMASSE ESQ.
Assistant Federal Defender
Senior Appellate Counsel
Defender Association of Philadelphia
Federal Court Division
Curtis Center, Independence Square West
Suite 540 West
Philadelphia, PA 19106
Attorneys for Appellant
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OPINION
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BECKER, Circuit Judge.
This appeal by defendant Anthony
D’Angelico calls upon us once again to
assess whether a Guidelines sentence must
be vacated and the matter remanded to the
District Court because the parties have not
made a clear record on whether the District
Court’s denial of the downward departure
sought by D’Angelico— under U.S.S.G. §

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5K2.13, based upon his putative mental
retardation—was based on legal or
discretionary grounds. If the refusal was on
legal grounds, we have jurisdiction; if it was
discretionary, we do not. See United States
v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir.
1991). Because the background facts and
procedural history generally do not bear on
this issue, we need not set them forth, except
insofar as they are necessary to our
disposition.
Notwithstanding our injunction in United
States v. Mummert, 34 F.3d 201 (3d Cir.
1994), that District Judges clearly note the
basis for their refusal to depart downward,
the issue keeps recurring.
What the District Judge said here was:
I do not find that there are grounds
for a downward departure, as you
have requested, and I’m going to deny
that. But, I will sentence your client
to the lower end of the guideline
range and in the hopes that he’s going
to have to spend about six years in
prison. Maybe he’ll get some time
off for good behavior. And, he’ll just
understand that he can’t conduct
himself the way he was.
D’Angelico submits that the statement is less
than pellucid:
Although U.S.S.G. § 5K2.13 [the
Guideline at issue] expressly sets out
a number of limitations on the court’s
departure authority, the district court
made no explicit findings regarding
any of those factors. Nor did the
court state that it had legal authority
to depart or state that its refusal to
depart resulted from the exercise of
its discretion. Furthermore, the
statement the court did make (“I do
not find that there are grounds for a
downward departure”) is ambiguous
regarding the basis for the court’s
ruling, as it equally supports both a
conclusion that the refusal to depart
was based on a belief that one or
more of the express limitations on the
court’s authority to depart did exist in
this case, and a conclusion that the
refusal resulted from the exercise of
discretion. . . . As such, the record
fails to reveal whether denial of the
departure was based on legal or
discretionary grounds.
This argument is very strong. On the
other hand, the government points out that it
did not dispute at sentencing that the District
Court had the authority to depart under the
circumstances of this case. It goes on to
demonstrate the point:
[W]hen the District Court asked for
the government to respond to the
defendant’s motion, the government
stated that “to some extent[,] there’s
some validity to that position and [the
government] would not object to
some minimum departure in light of
the defendant’s diminished capacity
and the fact that his mental capacity
played some role in the offense here.”
In Mummert we stated that where the
government concedes the plausibility of the
downward departure, “it seems quite likely
that the district court’s refusal to depart . . .

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was discretionary.” 34 F.3d at 205.
We are chagrined that the district courts,
which could so easily make crystal clear
whether their refusal to depart is because
they do not believe that they have the
authority to do so or, conversely, whether
they understand their authority to depart and
exercise their discretion not to, so often fail
to take that opportunity. This is the case
here. Our frustration is not limited to the
courts, for the prosecutor and defense
counsel also bear responsibility. There is no
reason that, if a district court does not clarify
the basis for non-departure, counsel should
not remind the court to do so. Emphatically,
this is counsel’s responsibility for it is a
matter of preserving the record for appeal
(or, from the government’s point of view,
insulating the judgment from appeal).
Counsels’ failures engender needless appeals
and waste of time and funds. We expect
counsel to heed this injunction.
Though this is not our preferred course,
the state of the record here does allow us to
divine, albeit indirectly, the basis for the
District Court’s refusal to depart downward.
The government acknowledged at sentencing
itself that the defendant was correct that the
Court had the power to depart. Given this,
we are satisfied that the able District Judge
in this case understood his authority to depart
and exercised his discretion not to do so.
Under the circumstances, we have no
appellate jurisdiction. See United States v.
Denardi, 892 F.2d 269, 272 (3d Cir. 1989)
(holding that the Court of Appeals lacks
jurisdiction under 18 U.S.C. § 3742 to
entertain an appeal from a district court’s
exercise of discretion in refusing to depart
downward). The appeal will therefore be
dismissed.

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