UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Edward BROWNSTEIN, Defendant-Appellant

Lawrence Brownstein pleaded guilty to bank robbery, 18 U.S.C. § 2113 (a). He contends on appeal that the district court misapplied the sentencing guidelines by refusing to consider his request for downward departure pursuant to U.S.S.G. § 5K2.16 p.s. The government challenges our jurisdiction to review the district court’s decision. We conclude that we have jurisdiction, and we affirm.

I.

After robbing two federally insured banks, Brownstein voluntarily notified police and confessed. He pleaded guilty pursuant to a plea agreement, and at sentencing sought a downward departure based on section 5K2.16. That policy statement provides that “[if] the defendant voluntarily discloses to authorities the existence of, and accepts responsibility for, the offense prior to the discovery of such offense, and if such offense was unlikely to have been discovered otherwise, a departure ... may be warranted.” U.S.S.G. § 5K2.16 p.s. The district court re fused to apply the policy statement to Brownstein’s circumstances, reasoning that his bank robberies were not unknown offenses at the time that Brownstein turned himself over to authorities.

II.

The government challenges our jurisdiction on the…