United States of America v. ELADIO CRUZ a/k/a LADO Eladio Cruz

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2824
UNITED STATES OF AMERICA
v.
ELADIO CRUZ
a/k/a
LADO
Eladio Cruz,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
District Judge: Honorable John W. Bissell, Chief Judge
(D.C. Crim. No. 01-00292-1)
Argued February 28, 2003
BEFORE: SCIRICA, GREENBERG, and GIBSON*, Circuit Judges
(Filed: March 21, 2003)
Esther Salas (argued)
Lisa M. Mack
*Honorable John R. Gibson, Senior Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Federal Public Defender

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972 Broad Street
Newark, NJ 07102
Attorneys for Appellant
Christopher J. Christie
United States Attorney
George S. Leone
Chief, Appeals Division
Sabrina G. Comizzoli (argued)
Assistant United States Attorney
970 Broad Street
Newark, NJ 07102-2535
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Eladio Cruz appeals from a judgment of conviction and sentence entered June 28,
2002, on his plea of guilty to an indictment charging him with conspiracy to distribute
more than 50 grams of crack cocaine. The district court determined that his total offense
level was 34 which with his criminal history category of VII yielded a sentencing range of
262 to 327 months. The court sentenced him to a 262-month custodial term to be
followed by a five-year term of supervised release.
Cruz appeals, contending that “the [district] court erred in denying [his] downward
departure motion for over-statement of criminal history because it failed to employ the
applicable analytical framework, instead relying upon a skewed view of plea agreement
stipulations and its assignment to [him] of responsibility for the sins of his son.” Br. at 11.

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His son is a co-defendant in this case. The government answers that we lack jurisdiction
because the district court explicitly recognized that it had the authority to depart but
declined to do so.
We agree with the government and thus conclude that we do not have jurisdiction.
See United States v. McQuilkin, 97 F.3d 723, 729-30 (3d Cir. 1996). Consequently, we
will dismiss this appeal.
TO THE CLERK:
Please file the foregoing not precedential opinion.
/s Morton I. Greenberg
Circuit Judge

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