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cited 3× by 3 distinct cases, last quoted 2005 ·
…the circumstances in which a defendant may appeal a sentence ... do not include situations in which a defendant is seeking an enhanced downward departure.
at p. 222
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2008
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Top citers, strongest first. 38 distinct citers.
How cited ↗
discussed
Cited as authority (verbatim quote)
U.S. v. Voda
we think it clear that a period of confinement at a community corrections facility as a condition of probation . . . cannot possibly be equated with an equivalent period of imprisonment.
discussed
Cited as authority (rule)
United States v. Desmond Jones
United States v. Voda, 994 F.2d 149, 152 (5th Cir.1993); see also United States v. Chavez, 204 F.3d 1305, 1315 (11th Cir.2000) ("We have previously held that confinement to a halfway house at night with the requirement that a defendant work at a job or seek employment during the day is a liberty 'markedly different from custodial incarceration in a penitentiary.’ ” (quoting Dawson v. Scott, 50 F.3d 884, 888 (11th Cir.1995))); Bailor v. Salvation Army, 51 F.3d 678, 683 (7th Cir.1995) (describing residents’ freedom of movement in a halfway house); United States v. Parker, 902 F.2d 221, 222…
cited
Cited as authority (rule)
United States v. Surine
Torres, 251 F.3d at 145 (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990)).
cited
Cited as authority (rule)
United States v. Surine
Torres, 251 F.3d at 145 (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990)).
discussed
Cited as authority (rule)
United States v. Cooper
(2×)
Pre-Booker, we declined to review discretionary decisions to deny departure, unless for allegation of legal error, United States v. Ruiz, 536 U.S. 622 , 626–28 (2002); Denardi, 892 F.2d at 271–72, nor did we review appeals by defendants challenging the extent of a downward departure, United States v. Khalil, 132 F.3d 897, 898 (3d Cir. 1997) (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990)); accord United States v. Vizcarra-Angulo, 904 F.2d 22 , 22–23 (9th Cir. 1990) (finding no jurisdiction where the district court departed downward for government assistance but did not f…
examined
Cited as authority (rule)
United States v. Lydia Cooper
(4×)
Pre- Booker, we declined to review discretionary decisions to deny departure, unless for allegation of legal error, United States v. Ruiz, 536 U.S. 622, 626-28 , 122 S.Ct. 2450 , 153 L.Ed.2d 586 (2002); Denardi, 892 F.2d at 271-72 , nor did we review appeals by defendants challenging the extent of a downward departure, United States v. Khalil, 132 F.3d 897, 898 (3d Cir.1997) (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990)); accord United States v. Vizcarra-Angulo, 904 F.2d 22, 22-23 (9th Cir.1990) (finding no jurisdiction where the district court departed downward for governme…
discussed
Cited as authority (rule)
United States v. Cooper
(2×)
Pre-Booker, we declined to review discretionary decisions to deny departure, unless for allegation of legal error, United States v. Ruiz, 536 U.S. 622 , 626–28 (2002); Denardi, 892 F.2d at 271–72, nor did we review appeals by defendants challenging the extent of a downward departure, United States v. Khalil, 132 F.3d 897, 898 (3d Cir. 1997) (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990)); accord United States v. Vizcarra-Angulo, 904 F.2d 22 , 22–23 (9th Cir. 1990) (finding no jurisdiction where the district court departed downward for government assistance but did not f…
discussed
Cited as authority (rule)
United States v. Armstead
United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) (“The circumstances in which a defendant may appeal a sentence ... do not include situations in which a defendant is seeking an enhanced downward departure.”); see also 18 U.S.C. § 3742 (a).
discussed
Cited as authority (rule)
United States v. Carston
United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) (“The circumstances in which a defendant may appeal a sentence ... do not include situations in which a defendant is seeking an enhanced downward departure.”); see also 18 U.S.C. § 3742 (a).
discussed
Cited as authority (rule)
United States v. Pope
United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) teaches that we lack jurisdiction to hear an appeal in the precise situation posed here, where the district court in fact departed downward but defendant seeks a greater departure— a variant on the more frequently announced proposition that “[w]e may review a claim for downward departure only when the District Court was not aware of its authority to grant a downward departure” (United States v. Gori, 324 F.3d 234, 239 (3d Cir.2003)).
discussed
Cited as authority (rule)
United States v. Mucha
See also, e.g., United States v. Spinello, 265 F.3d 150, 162 (3d Cir.2001); United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) (“We did not have jurisdiction to entertain an appeal when the district court refused to exercise its discretion to depart downward from the guidelines.”).
discussed
Cited as authority (rule)
United States v. Chavez
We have previously held that confinement to a halfway house at night with the requirement that a defendant work at a job or seek employment during the day is a liberty “markedly different from custodial incarceration in a penitentiary.” Dawson v. Scott, 50 F.3d 884, 888 (11th Cir.1995) (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) (confinement permitting release for work “cannot possibly be equated with an equivalent period of imprisonment”)).
discussed
Cited as authority (rule)
United States v. Chavez
We have previously held that confinement to a halfway house at night with the requirement that a defendant work at a job or seek employment during the day 7 In its order denying Chavez’s petition to stay execution of sentence, the district court stated that it imposed the sentence so Chavez could maintain his employment at the United States Post Office. 19 is a liberty “markedly different from custodial incarceration in a penitentiary.” Dawson v. Scott, 50 F.3d 884, 888 (11th Cir. 1995) (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990) (confinement permitting release for …
cited
Cited as authority (rule)
United States v. Morelli, Anthony, (d.c. Crim. No. 93-Cr-00210-1), in No. 96-5144. United States of America v. Igor Roizman, A/K/A Little Igor, (d.c. Crim. No. 93-Cr-00210-10), Igor Roizman in No. 96-5389
See United States v. Khalil, 132 F.3d 897 (3d Cir.1997); United States v. Miele, 989 F.2d 659 , 668 n. 11 (3d Cir.1993); United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990).
cited
Cited as authority (rule)
United States v. Morelli
See United States v. Khalil, 132 F.3d 897 (3d Cir.1997); United States v. Miele, 989 F.2d 659 , 668 n. 11 (3d Cir.1993); United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990).
discussed
Cited as authority (rule)
United States v. Stephan Gary Hill
See respectively, United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990); United States v. Doe, 996 F.2d 606, 607 (2d Cir.1993) (per curiam); United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990); United States v. Alvarez, 51 F.3d 36, 39 (5th Cir.1995); United States v. Gregory, 932 F.2d 1167, 1168 (6th Cir.1991); United States v. Gant, 902 F.2d 570, 572-73 (7th Cir.1990); United States v. Vizcarra-Angulo, 904 F.2d 22, 23 (9th Cir.1990); United States v. Bromberg, 933 F.2d 895, 896 (10th Cir.1991); United States v. Wright, 895 F.2d 718, 719-22 (11th Cir.1990) (per cu-riam); Hazel, 928 F.2d…
discussed
Cited as authority (rule)
John F. Dawson v. Roger Scott, Warden
(2×)
Such liberty is markedly different from custodial incarceration in a penitentiary. 7 See United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) (holding that confinement "subject to a defendant's being released to go to work, cannot possibly be equated with an equivalent period of imprisonment").
discussed
Cited as authority (rule)
United States v. James P. Mastronardi
AFFIRMED 1 United States Sentencing Commission, Guidelines Manual (Nov.1992) 2 See United States v. Doe, 996 F.2d 606, 607 (2d Cir.1993); United States v. Correa, 995 F.2d 686, 687 (7th Cir.1993); United States v. Bromberg, 933 F.2d 895, 896-97 (10th Cir.1991); United States v. Gregory, 932 F.2d 1167, 1168-69 (6th Cir.1991); United States v. Sharp, 931 F.2d 1310, 1311 (8th Cir.1991); United States v. Hazel, 928 F.2d 420, 424 (D.C.Cir.1991); United States v. Vizcarra-Angulo, 904 F.2d 22, 23 (9th Cir.1990); United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990); United States v. Pighetti, 898 …
discussed
Cited as authority (rule)
United States v. Tracy Joe Watson
However, this court has joined other circuits in holding that the court has no jurisdiction over an appeal "based on a district court's failure to depart downward enough to satisfy the defendant." United States v. Gregory, 932 F.2d 1167, 1169 (6th Cir.1991); United States v. Gant, 902 F.2d 570, 573 (7th Cir.1990); United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990). 6 Furthermore, Watson's sentence does not constitute cruel and unusual punishment under the Eighth Amendment.
discussed
Cited as authority (rule)
Ziya K. Koray v. Frank Sizer United States Bureau of Prisons Attorney General of the United States
See, e.g., United States v. Zackular, 945 F.2d 423, 425 (1st Cir.1991) (“confinement to the comfort of one’s own home is not the functional equivalent of incarceration in either a practical or a psychological sense”); United States v. Edwards, 960 F.2d 278, 282-85 (2d Cir.1992) (confinement to uncle’s apartment except for religious services, choir practice, court appearances and to meet with attorney with intermittent electronic monitoring is insufficient to constitute “official detention”); Marrera v. Edwards, 812 F.2d 1517, 1517 (6th Cir.1987) (pre-trial confinement for medical t…
discussed
Cited as authority (rule)
United States v. Patrick Ray McCall Jr., A/K/A Peppy Patrick Ray McCall Jr., A/K/A Peppy McCall A/K/A Sayyid
Because the sufficiency of a downward departure is not reviewable on appeal, see, e.g., United States v. Bromberg, 933 F.2d 895, 896 (10th Cir. 1991); United States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990); United States v. Wright, 895 F.2d 718, 71922 (11th Cir. 1990), we shall refrain from considering this argument. 3 McCall's counsel also contends that the district court failed to establish both a sufficient factual basis for the plea and McCall's understanding of the offense to which he was pleading guilty.
discussed
Cited as authority (rule)
United States v. John Doe 1, and John Doe 2
See United States v. McHenry, 968 F.2d 1047, 1048 (10th Cir.1992); United States v. Albers, 961 F.2d 710, 712 (8th Cir.1992); United States v. Gregory, 932 F.2d 1167, 1168-69 (6th Cir.1991); United States v. Dickey, 924 F.2d 836, 838 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991); United States v. Pomerleau, 923 F.2d 5, 6 (1st Cir.1991); United States v. Dean, 908 F.2d 215, 217-18 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2801 , 115 L.Ed.2d 974 (1991); United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990); United States v. Wright, 895 F.2d 718, 721-22…
discussed
Cited as authority (rule)
United States v. Carlos Correa
United States v. Dean, 908 F.2d 215, 217 (7th Cir.1990) (no jurisdiction where defendant seeks greater departure); United States v. Gant, 902 F.2d 570, 572 (7th Cir. 1990) (no jurisdiction where defendant argues court did not depart far enough downward); United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) (“It surely follows ... that we could not possibly have jurisdiction to hear an appeal by the defendant where there has been some downward departure”). “[I]t would be anomalous to find that we have jurisdiction over the appeal of a defendant who actually benefitted from a downward …
discussed
Cited as authority (rule)
United States v. George R. Mitchell
CONCLUSION 34 For the reasons stated above, the judgment of the district court is AFFIRMED 1 See, e.g., United States v. Gregg, 829 F.2d 1430 , 1437 n.14 (8th Cir.) (construing § 2778(b)(2)), cert. denied, 486 U.S. 1022 (1987); United States v. Beck, 615 F.2d 441, 450 (7th Cir. 1980) (same); United States v. Lizarraga-Lizarraga, 541 F.2d 826, 828-29 (9th Cir. 1976) (construing 22 U.S.C. § 1934 ); Samora v. United States, 406 F.2d 1095, 1098 (5th Cir. 1969) (same) 2 See United States v. Bromberg, 933 F.2d 895, 896 (10th Cir. 1991); United States v. Gregory, 932 F.2d 1167, 1169 (6th Cir. 1991)…
discussed
Cited as authority (rule)
United States v. Anthony M. Miele John Jay McElfresh Charles J. Walters Patrick T. Reinstadtler James F. Foster, Anthony M. Miele
In United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990), we specifically held that the circumstances in which a defendant may appeal a sentence, as set forth in 18 U.S.C. § 3742 (a), "do not include situations in which a defendant is seeking an enhanced ’downward departure.” Accordingly, we will dismiss Miele’s appeal of the district court’s § 5K1.1 two-level downward departure.
discussed
Cited as authority (rule)
United States v. Denise Gregory
United States v. Gant, 902 F.2d 570, 573 (7th Cir.1990) (“It would be anomalous to find that we have jurisdiction over the appeal of a defendant who actually benefited from a downward departure that he regards as being niggardly.”); United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) (“[W]e [have] held that we did not have jurisdiction to entertain an appeal when the district court refused to exercise its discretion to depart downward from the guidelines.
discussed
Cited "see"
United States v. Walker
See United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) (“The circumstances in which a defendant may appeal a sentence are set forth in 18 U.S.C. § 3742 (a) and do not include situations in which a defendant is seeking an enhanced downward departure.”); United States v. Denardi 892 F.2d 269, 271-72 (3d Cir.1989).
cited
Cited "see"
United States v. Armstead
See United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) (cited in Armstead I, 117 Fed.Appx. at 183 ); United States v. Graham, 72 F.3d 352, 360-61 , 361 n. 10 (3d Cir.1995) (collecting cases).
discussed
Cited "see"
United States v. Torres
See United States v. Khalil, 132 F.3d 897, 898 (3d Cir.1997) (“[Bjecause ‘we did not have jurisdiction to entertain an appeal when the district court refused to exercise its discretion to depart downward from the guidelines,’ it surely follows that we could not possibly have jurisdiction to hear an appeal by a defendant where there has been some exercise of the court’s discretion to depart downward.”) (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990)).
discussed
Cited "see"
United States v. Ramos
See United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) (“The circumstances in which a defendant may appeal a sentence ... do not include situations in which a defendant is seeking an enhanced downward departure.”).
cited
Cited "see"
United States v. McClary
See United States v. Parker, 902 F.2d 221 (3d Cir.1990); United States v. Denardi, 892 F.2d 269 (3d Cir.1989).
cited
Cited "see"
United States v. Becht
See United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990); see also United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir.1996); United States v. Denardi, 892 F.2d 269, 272 (3d Cir.1989).
cited
Cited "see"
United States v. Delgado
See United States v. Torres, 251 F.3d 138, 145 (3d Cir.2001) (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990)).
cited
Cited "see"
United States v. Stratton
See, United States v. Parker, 902 F.2d 221 (3rd Cir. 1990).
cited
Cited "see"
United States v. Torres
See United States v. Parker, 902 F.2d 221, 222 (3d Cir . 1990).
cited
Cited "see"
United States v. Charles Torres
See United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990).
discussed
Cited "see"
United States v. Ronald L. Voda, Sr.
See United States v. Parker, 902 F.2d 221, 222 (3rd Cir.1990) ("We think it clear that a period of confinement [at a community corrections facility] as a condition of probation ... cannot possibly be equated with an equivalent period of imprisonment.”). 9 .
discussed
Cited "see, e.g."
United States v. Loper
Our appellate jurisdiction under 18 U.S.C. § 3742 (a) is limited and does not permit us to review the extent of the downward departure granted to Loper. ‘We have no jurisdiction to review [the appellant’s] appeal from the district court’s discretionary downward departure of his sentence.” United States v. Khalil, 132 F.3d 897, 898 (3d Cir.1997); see also United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990).
Retrieving the full opinion text from the archive…
UNITED STATES of America
v.
PARKER, Darius, Appellant
v.
PARKER, Darius, Appellant
90-1171.
Court of Appeals for the Third Circuit.
May 9, 1990.
Larry A. Colston, Philadelphia, Pa., for appellant., Michael M. Baylson, U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Jeffrey M. Klink, Asst. U.S. Atty., Philadelphia, Pa., for appellee.
Becker, Greenberg, Dumbauld.
Cited by 45 opinions | Published
OPINION OF THE COURT
GREENBERG, Circuit Judge.Appellant Darius Parker appeals from a judgment of sentence imposed on February 22, 1990, following his guilty plea to both counts of a two-count indictment charging him with knowingly and intentionally distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1). The parties agree that under the sentencing guidelines the total offense level was 10 and his criminal history category was I, so that in the absence of a downward departure the following range of sentence would have been applicable: six to 12 months imprisonment, three to five years supervised release, $2,000 to $2,000,000 fine, $91.66 cost of supervision and a $50 special assessment on each count. However, the Government served a motion under guideline § 5K1.1 stating that Parker had substantially cooperated, so that it requested that the court depart from the minimum guideline ranges applicable in this case. The court sentenced Parker to concurrent 36 months terms of probation on the two counts but as a condition of probation required him to reside for six months in the Greater Philadelphia Center for Community Corrections. During that time, however, he was permitted to be employed and was to be released[*222] to go to his employment but was to be in the Center each night. No fine or period of supervised release was imposed and no restitution was required but a special assessment of $50 on each count was made.
Parker appeals, asserting that because the six months confinement as a condition of probation is the essential equivalent of the minimum sentence under the guidelines, there was no downward departure, the government’s motion was ignored, and an unreasonable sentence was imposed. Thus, he requests that we vacate the sentence and remand the matter for resentenc-ing. We will dismiss the appeal.
Under 18 U.S.C. § 3563(b)(12), the court as a condition of probation may require a defendant to reside at a community corrections facility. We think it clear that a period of confinement as a condition of probation, subject to a defendant’s being released to go to work, cannot possibly be equated with an equivalent period of imprisonment. Thus, quite aside from the circumstance that no fine or period of supervised release was imposed, there was a downward departure here. Accordingly, the precise jurisdictional question before us is whether we have jurisdiction to hear an appeal when there has been a downward departure and the appellant seeks a further departure.
We need not linger on this question. The circumstances in which a defendant may appeal a sentence are set forth in 18 U.S.C. § 3742(a) and do not include situations in which a defendant is seeking an enhanced downward departure. In United States v. Denardi, 892 F.2d 269 (3d Cir.1989), we held that we did not have jurisdiction to entertain an appeal when the district court refused to exercise its discretion to depart downward from the guidelines. It surely follows from that holding that we could not possibly have jurisdiction to hear an appeal by the defendant where there has been some downward departure. See United States v. Pighetti, 898 F.2d 3 (1st Cir.1990). The appeal will be dismissed.