United States v. Parker, Darius

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.