United States of America v. Anthony Malone

*The Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0002n.06
Filed: January 3, 2005
No. 03-3131
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY MALONE,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
Before: MOORE and GIBBONS, Circuit Judges, and MILLS, District Judge. *
JULIA SMITH GIBBONS, Circuit Judge. Anthony Malone appeals the sentence imposed
upon his plea of guilty to one count of unarmed robbery in violation of 18 U.S.C. § 2113(a). At
sentencing, the district court determined that, due to Malone’s two previous convictions for
controlled substance offenses, he was to be sentenced as a career offender pursuant to United States
Sentencing Guideline (“USSG”) § 4B1.1. The court then granted Malone’s request for a downward
departure pursuant to USSG § 4A1.3 based on a finding that Malone’s criminal history category
substantially overrepresented the seriousness of his criminal history and reduced his total offense

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No. 03-3131
United States v. Malone
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level by five points. Thereafter, the district court sentenced Malone to an imprisonment term of 102
months and three years of supervised release.
On appeal, Malone argues that the district court failed to apply properly the sentencing
guidelines in refusing to grant a greater downward departure. A defendant’s appeal from a final
sentence is governed by 18 U.S.C. § 3742.
Upon review, we conclude that Malone’s argument does not fit within the confines of §
3742. It is well established in this circuit that this court lacks jurisdiction to hear an appeal
“contesting the extent of a downward departure as such appeals do not fall under 18 U.S.C. § 3742.”
United States v. Nesbitt, 90 F.3d 164, 166 (6th Cir. 1996); United States v. Gregory, 932 F.2d 1167,
1168-69 (6th Cir. 1991). Because the sentencing judge was obviously aware of his ability to depart
downward from the sentencing guidelines, evidenced by the fact that he granted Malone a five level
departure, the extent of the downward departure is not reviewable. See Nesbitt, 90 F.3d at 166.
Accordingly, we hereby dismiss the appeal for a lack of jurisdiction and affirm Malone’s
conviction and sentence.

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