United States of America, Plaintiff-appellant, v. Franklin Leonard Davidson, Defendant-appellee, 958 F.2d 378 (9th Cir. 1992)

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US Court of Appeals for the Ninth Circuit - 958 F.2d 378 (9th Cir. 1992) Argued and Submitted Nov. 4, 1991. Decided March 17, 1992

Before POOLE, REINHARDT and FERNANDEZ, Circuit Judges.


The United States appeals from the district court's sentence of 90 months under the Sentencing Guidelines imposed on Franklin Davidson. We dismiss the government's appeal.

The government contends on appeal that the district court departed downward from the recommended guidelines sentence1  because it sought to correct a disparity, caused by prosecutorial charging decisions, between Davidson's sentence and that given his codefendant, Andrew Ralph.2 

For the reasons set forth in United States v. Good, No. 90-10440 (9th Cir. 1991), filed at the same time as this disposition, we hold that the government did not preserve this issue for appeal.3 



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Davidson pled guilty to one unarmed bank robbery (18 U.S.C. § 2113(a)), two armed bank robberies (18 U.S.C. § 2113(d)), and one count of using a firearm during a crime of violence (18 U.S.C. 924(c)). Davidson's guideline range, including the mandatory five year consecutive sentence for the 924(c) charge, was 130 to 147 months


Ralph was not charged with a 924(c) violation, though he admittedly displayed a hand grenade in two robberies. He was thus not subject to the mandatory five year consecutive sentence imposed on Davidson


Even if it did, our review of the record indicates that the district court did not base its downward departure on this ground