United States v. Silvio Albert Lazo-Reinoso, 39 F.3d 1193, 10th Cir. (1994)
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Scribd Government DocsUnited States v. Silvio Albert Lazo-Reinoso, 39 F.3d 1193, 10th Cir. (1994)
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Scribd Government Docs39 F.
3d 1193
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES of America, Plaintiff-Appellee,
v.
Silvio Albert LAZO-REINOSO, Defendant-Appellant.
No. 94-6184.
United States Court of Appeals, Tenth Circuit.
Oct. 28, 1994.
Before TACHA, BRORBY, and EBEL, Circuit Judges.
ORDER AND JUDGMENT1
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
This is a direct criminal appeal, taken pursuant to Rule 4(b) of the Federal
Rules of Appellate Procedure, challenging the defendant's sentence.2
Defendant-Appellant pled guilty to one count of assaulting a federal
correctional officer in violation of 18 U.S.C. 111. In accord with the
presentence report, to which the defendant did not object, the district court
calculated a total offense level of 19 with a criminal history category of III,
which carries a sentencing range of 37 to 46 months. Because the statute of
conviction carried a maximum sentence of three years, however, the district
court could sentence the defendant to no more than 36 months of the applicable
range.
At the defendant's request, the district court departed downward by six months,
At the defendant's request, the district court departed downward by six months,
sentencing the defendant to 30 months in prison, to account for the six months
that the defendant had been in custody between the offense and the indictment.
The defendant timely appealed and the defendant's counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), arguing that the district
court erred by not departing downward more than the six months the defendant
had originally requested.
In United States v. Bromberg, 933 F.2d 895, 896 (10th Cir.1991), we held that
the extent of downward departure chosen by a district court is not appealable by
a defendant under 18 U.S.C. 3742, which governs a defendant's right to appeal
a sentence. It is settled law in this circuit that we therefore "lack jurisdiction
where the defendant complains that the district court's grant of a downward
departure is too small." Id. at 896; United States v. McHenry, 968 F.2d 1047,
1049 (10th Cir.1992).
Accordingly, we DISMISS this appeal for lack of jurisdiction to review the
extent of departure by the sentencing court.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470
The district court granted the plaintiff's application to proceed in forma
pauperis, pursuant to 28 U.S.C.1915(a)
