United States of America v. Thomas Sees

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-2418
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UNITED STATES OF AMERICA
v.
THOMAS SEES,
Appellant
_______________________________________________
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 00-cr-00247
(Honorable Joel A. Pisano)
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Submitted Pursuant to Third Circuit LAR 34.1(a)
January 17, 2002
Before: SCIRICA and ROSENN, Circuit Judges, and KANE, District Judge*
(Filed February 13, 2002)
*The Honorable Yvette Kane, United States District Judge for the Middle District of
Pennsylvania, sitting by designation.
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MEMORANDUM OPINION
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SCIRICA, Circuit Judge.
This is a sentencing appeal. Thomas Sees pled guilty in the United States District
Court for the District of New Jersey to a superseding information charging that on
October 27, 1999, he knowingly and intentionally used a communication facility (a
telephone) to facilitate the distribution and the possession with intent to distribute
methamphetamine, a felony under 21 U.S.C. REWRITE 841(a)(1), in violation of 21 U.S.C.
REWRITE
843(b). On appeal, Sees contends the District Court erred in failing to grant a downward
departure under U.S.S.G. REWRITE 5K2.0 based on extraordinary post-offense
rehabilitation.
"We lack jurisdiction to review a refusal to depart downward 'when the district
court, knowing it may do so, nonetheless determines that departure is not warranted.'"
United States v. Sally, 116 F.3d 76, 78 (3d Cir. 1997) (quoting United States v.
McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996)). At sentencing, the District Court explicitly
articulated more than once that it had the power to depart from the Guidelines based on
defendant's post-offense rehabilitation efforts. The court framed the issue before it as
whether it should "exercise the discretion that I recognize I have in order to make a
downward departure" on the basis of post-offense rehabilitation. (App. 62). The District
Court's recognition of its authority in this regard also was reflected in the court's
willingness to hear testimony concerning defendant's post-offense rehabilitation, and in
the court's discussion with counsel concerning whether to depart in view of the facts of
this particular case. The District Court decided, however, that defendant's post-offense
conduct was not "so exceptional" as to warrant a downward departure from the
Guidelines.
As a result, we lack jurisdiction to review the District Court's refusal of a
downward departure in this matter. The appeal is dismissed for lack of jurisdiction.
TO THE CLERK:
Please file the foregoing opinion.

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/s/ Anthony J. Scirica
Circuit Judge
DATED: February 13, 2002

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