United States of America v. LAMONT McKELLER a/k/a KAMIL SMITH a/k/a KAMIL IFRIQI Lamont McKeller

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-2902
UNITED STATES OF AMERICA
v.
LAMONT McKELLER
a/k/a KAMIL SMITH
a/k/a KAMIL IFRIQI
Lamont McKeller,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 01-cr-00105-1)
District Judge: Hon. Jerome B. Simandle
Submitted Under Third Circuit LAR 34.1(a)
March 13, 2003
Before: SLOVITER, NYGAARD, and ALARCÓN*, Circuit Judges
(Filed: March 14, 2003)
OPINION OF THE COURT
__________________
* Hon. Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the Ninth
Circuit, sitting by designation.
SLOVITER, Circuit Judge.

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Appellant Lamont McKeller, who pled guilty to bank robbery in New Jersey by
force and violence and by intimidation, appeals from the District Court’s denial of his
motion for downward departure from the Sentencing Guidelines pursuant to 18 U.S.C. §
3742(a). We cannot consider the substance of McKeller’s arguments because we have no
jurisdiction over McKeller’s appeal.
I.
Facts and Procedure
The facts are undisputed. On April 17, 2000, McKeller, along with an accomplice,
robbed the Evesham, New Jersey branch of PNC Bank. Less than two weeks later, on April
29, 2000, McKeller robbed the Bulls Eye Saloon in Delaware.
In June of 2000, while in prison awaiting trial on Delaware state charges of two
counts of attempted murder, first degree robbery, felony assault and other offenses for the
Saloon robbery, McKeller was interviewed by FBI agents concerning his role in the
Evesham bank robbery. McKeller denied any involvement in the New Jersey robbery.
Thereafter, an Assistant United States Attorney from New Jersey informed McKeller’s
counsel that his office had built a substantial case against McKeller with the cooperation of
McKeller’s accomplice. He told McKeller’s counsel that McKeller would receive a
substantially lesser sentence if he were convicted in New Jersey before he was convicted in
Delaware. Nonetheless, McKeller did not enter a guilty plea in New Jersey prior to his
conviction on the Delaware charges.
On October 18, 2001, following McKeller’s Delaware conviction, McKeller

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entered into a guilty plea agreement with the Government concerning the New Jersey
robbery. In light of the prior Delaware sentence, McKeller was subject to sentencing as a
career offender, and he was sentenced to 151 months imprisonment. At the request of
counsel, the District Court ordered that 41 months of the 151 month sentence be served
concurrently with the Delaware sentence, less good time credit.
McKeller moved for a downward departure, which the District Court denied at
sentencing.
II.
Discussion
The Government challenges this court’s jurisdiction to review McKeller’s appeal
from the District Court’s discretionary denial of the requested downward departure. The
Government’s argument is persuasive and is fully supported by the precedent established by
this court and the Supreme Court. We first held in United States v. Denardi, 892 F.2d 269,
271-72 (3d Cir. 1989), that this court may review a district court’s denial of a downward
departure pursuant to 18 U.S.C. § 3742(a) where the district court was unaware of its
authority to grant the departure or where the district court incorrectly applied the
guidelines. In this case, McKeller does not contend that the Sentencing Guidelines were
incorrectly applied. Nor was the District Court unaware of its authority to depart. In fact,
the District Court expressly stated at the outset: “First, I recognize that I can depart
downward if there are unique and extraordinary circumstances present that would make
characterization as a career offender inequitable. . . . [T]hey have not arisen in Mr.

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1 McKeller argues that “it was inequitable to sentence [him] as a ‘career offender’
because he was denied the opportunity to avoid that status, as a result of [his attorney’s]
failure properly to communicate to him what the government intended to offer to him.” Br.
of Appellant at 12. If McKeller is implicitly arguing ineffective assistance of counsel, he
may not do that on direct appeal but may raise that as a collateral attack under 28 U.S.C. §
2255.
McKeller’s case. . . .” App. at 53. The District Court then engaged in an analysis of the
circumstances leading to McKeller’s sentencing. Because the District Court’s analysis
illustrates its awareness of its authority to grant a motion for downward departure based on
its discretion, we are without appellate jurisdiction. See United States v. Ruiz, 536 U.S.
622, 122 S. Ct. 2450, 2454 (2002).1
III.
Conclusion
For the reasons set forth, we will dismiss McKeller’s appeal.
_______________________
TO THE CLERK:
Please file the foregoing opinion
/s/ Dolores K. Sloviter
Circuit Judge

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