United States v. Frank Steven Spradling

947 F.2d 954 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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. Frank Steven SPRADLING, Defendant-Appellant. No. 90-2030. United States Court of Appeals, Tenth Circuit. Nov. 8, 1991. Before LOGAN, JOHN P. MOORE and BALDOCK, Circuit Judges.* ORDER AND JUDGMENT** BALDOCK, Circuit Judge. [1] Pursuant to a guilty plea, defendant-appellant Frank Steven Spradling was convicted of one count of bank robbery, 18 U.S.C. § 2113(a), and one count of bank larceny, 18 U.S.C. § 2113(b). After adopting the presentence report's Sentencing Guidelines calculation of a 63 to 78 month sentencing range, the district court sentenced defendant to the maximum sentence of 78 months incarceration. In stating its reasons for imposing the maximum sentence, the court made reference to defendant's extensive criminal record. Defendant appeals, contending that the district court misapplied the guidelines by double counting his criminal history--once in the base offense calculation and again in the sentencing range. [2] In the Sentencing Guidelines context, we have jurisdiction to review for errors in law and misapplications of the guidelines. See 18 U.S.C. § 3742(a)(1)(2); United States v. Garcia, 919 F.2d 1478 (10th Cir.1990). We do not, however, have jurisdiction to review the district court's discretionary decision regarding the particular point to sentence within an appropriate guideline range. See Garcia, 919 F.2d at 1481-82. Defendant does not challenge the appropriateness of the guideline range, nor does he allege any error in law. Instead, he invites us to scrutinize the sentencing justification offered by the district court. See id. at 1482. This, we do not have jurisdiction to do. The government has moved for a dismissal for lack of jurisdiction. See 10th Cir.R. 27.2.1. We grant the motion and DISMISS the appeal. Footnotes [-s] * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case therefore is ordered submitted without oral argument [-s-s] ** This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3