United States of America v. Joseph Kalwaytis

* Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the District of New Jersey, sitting by designation.
NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 02-1941
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UNITED STATES OF AMERICA
v.
JOSEPH KALWAYTIS,
Appellant
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 1:CR-01-239-001)
District Judge: The Honorable Yvette Kane
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Submitted Under Third Circuit LAR 34.1(a)
October 31, 2002
BEFORE: NYGAARD and WEIS, Circuit Judges and IRENAS,* District Judge.
(Filed: December 5, 2002)
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OPINION OF THE COURT
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IRENAS, Senior District Judge.
Appellant Joseph Kalwaytis appeals the District Court’s final judgment of sentence
entered on March 18, 2002. Kalwaytis argues that the District Court erred in its
application of § 5K1.1 of the United States Sentencing Guidelines by granting the
government’s motion for a downward departure but not actually departing from the original
guideline range. We will affirm the sentence entered by the District Court.
Kalwaytis entered into a Plea Agreement on July 20, 2001 and thereafter provided
assistance to the government in its investigations of unrelated criminal activity. While
Kalwaytis’ assistance failed to lead to any convictions it was considered moderately helpful
to the government. As a result, the government moved for a downward departure in his
sentence of one offense level from the original guideline range of 24 to 30 months. The
District Court granted this motion and sentenced Kalwaytis to 27 months in prison, the
maximum allowed under the reduced guideline range of 21 to 27 months. Kalwaytis argues
that the District Judge, by imposing a sentence within the original guidelines, essentially
did not grant the motion for a downward departure and therefore misinterpreted or
misapplied the law.
When a sentence is lawfully imposed and within the appropriate guideline range this
Court lacks jurisdiction to review the District Court’s decision. United States v. Torres,
251 F.3d 138, 151-52 (3d Cir. 2001); United States v. Graham, 72 F.3d 352, 358 n.8 (3d
Cir. 1995). In this case, the sentence imposed by the District Judge was within the

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appropriate guideline range and was not unlawfully imposed.
The District Court clearly implied that had it not granted the downward departure
Kalwaytis would have been sentenced to 30 months in prison. “It’s clear to me that you
deserve a sentence of 30 months, at the very highest end of the guideline range.”
(Sentencing Tr. at 30.) Instead, the District Court apparently reduced the sentence by three
months to the highest end of the lower offense level. By doing so, the District Court
therefore did grant the downward departure requested by the government and did impose a
sentence within the appropriate guidelines. There was nothing unlawful in the District
Court’s decision to take into account the cooperation of Kalwaytis with the government and
reduce his sentence accordingly.
Simply because the sentence imposed was still within the guidelines of the original
offense level does not mean that a downward departure was not granted. In this case, the
District Court apparently reduced Kalwaytis’ sentence by three months through the
downward departure. As the sentence imposed was within the appropriate guideline range
of 21 to 27 months and was lawfully imposed by the District Court, this Court has no
jurisdiction to review that sentence. Accordingly, we will affirm the sentence imposed by
the District Court.
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TO THE CLERK:

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Please file the foregoing opinion.
/s/ Joseph E. Irenas
Senior District Judge

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