United States of America v. Tyler Smith

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 03-4679
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UNITED STATES OF AMERICA
v.
TYLER SMITH,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 03-cr-00164-1)
District Judge: Honorable Christopher C. Conner
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Submitted Under Third Circuit LAR 34.1(a)
September 17, 2004
Before: ALITO, AMBRO and FISHER, Circuit Judges.
(Filed: March 29, 2005)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
In his brief, appellant waives any challenge to his conviction, instead asking that
we remand for clarification as to whether the District Court’s denial of a downward
departure was based on an exercise of discretion. However, the record, including the

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prosecutor’s concessions that departure would be lawful, make it clear that the District
Court understood its authority and simply exercised its discretion not to depart when
stating that a departure was “not warranted.” We therefore lack appellate jurisdiction
over this portion of the appeal. See United States v. Denardi, 892 F.2d 269 (3d Cir.
1989).
We note that appellant also filed a post-briefing motion regarding other sentencing
issues arising from Blakely v. Washington, 124 S. Ct. 2531 (2004). Having determined
that these other sentencing issues are best determined by the District Court in the first
instance, we will vacate the sentence and remand for re-sentencing in accordance with
United States v. Booker, 125 S. Ct. 738 (2005).

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