United States v. Jose Fernando Garcia-Garcia

This case requires us to decide whether an appealable issue is presented when a district court declines to depart downward from the applicable sentencing guideline range, but makes no finding that it has authority to do so if it wished.

Jose Fernando Garcia-Garcia appeals his sentence, imposed under the United States Sentencing Guidelines and within the applicable guideline range, following his conviction by guilty plea for possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). He contends that the district court erred by failing to rule on whether it had authority to depart below the applicable guideline range. Because we conclude that the district court has no obligation affirmatively to state that it does have authority to depart, when its authority to do so is not otherwise in dispute, the failure to depart remains discretionary and a sentence imposed within the applicable guideline range is not unlawful. The issue presented by Garcia is therefore unappealable, and we dismiss.

I

The presentence report calculated Garcia’s guideline range at 21-27 months in prison. He argued for a downward departure due to the fact that he would…