On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal No. 92-cr-00689-5).
Before: Greenberg, Scirica and Lewis, Circuit Judges.
Frank Joseph Evans and nine other defendants were charged in a 25-count indictment with conspiracy and drug trafficking offenses. On April 21, 1993, Evans pled guilty to conspiracy to distribute more than five kilograms of cocaine (21 U.S.C. § 846 (1988)) and criminal forfeiture (21 U.S.C. § 853 (a)(1)-(2) (1988)). On July 8, 1993, the defendant filed a pro se motion to withdraw his guilty plea which was denied on October 15, 1993. On May 9, 1994, the defendant was sentenced to 360 months imprisonment followed by five years supervised release. He was also ordered to pay a special assessment of $50 and a fine of $1,000. We will vacate the defendant's sentence and remand to the district court for resentencing.
The defendant was arrested in Houston, Texas on July 20, 1992, while operating a motor vehicle containing 36 kilograms of cocaine in a concealed compartment. He identified himself to law enforcement officers as Frank Evans and produced a Pennsylvania driver's license which confirmed this information. On at least three subsequent court appearances, including his change of plea hearing, the defendant identified himself as Frank Evans.
The defendant's true identity was first learned when he disclosed it to a probation officer after he pled guilty but before his sentencing. The government, through fingerprint comparison, confirmed the defendant was in fact Ronald Dawkins. Dawkins had a prior criminal record and was wanted as a parole absconder and fugitive in South Carolina.
At sentencing, the district court rejected the government's contention that the defendant obstructed Justice by giving law enforcement officials a false name and denied the defendant's request for a downward departure based upon his disclosure of his true identity. The court then sentenced the defendant to 360 months imprisonment.*fn1
The district court may depart from the applicable range calculated under the United States Sentencing Guidelines where "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b) (1988). According to the policy statement in U.S.S.G. § 5K2.0, circumstances that may warrant departure are generally of two kinds: factors the Commission did not adequately consider in formulating the guidelines and factors that were considered but resulted in an inadequate guideline level because of unusual circumstances substantially in excess of the ordinary.
A discretionary decision by the trial Judge that a departure is not justified is not reviewable. See United States v. Gaskill, 991 F.2d 82, 84 (3d Cir. 1993); United States v. Higgins, 967 F.2d 841, 844 (3d Cir. 1992). But there is appellate jurisdiction where a court refuses to depart from the guidelines because it believes it lacks the authority to do so. Gaskill, 991 F.2d at 84; Higgins, 967 F.2d at 844.
In this case, the defendant maintains that except for his voluntary disclosure, his true identity would not have been ascertained. The probation officer who prepared the presentence investigation acknowledged he would not have discovered the defendant's true identity without the disclosure: "As far as I knew he had no criminal history and I would not have looked any further from that point. . . . [I] would never have found out who he was."
The defendant contends that his voluntary admission to the probation officer of his true identity and his prior record are circumstances of a kind or to a degree not contemplated by the sentencing guidelines. He maintains that his sentence should be vacated and the matter remanded for resentencing because the district court erroneously ...