United States of America, Plaintiff-appellee, v. Frank Steven Spradling, Defendant-appellant, 947 F.2d 954 (10th Cir. 1991)

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.

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.