Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.united States of America, Plaintiff-appellee, v. Delanney O'neal Gordon, Defendant-appellant, 61 F.3d 906 (7th Cir. 1995)

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U.S. Court of Appeals for the Seventh Circuit - 61 F.3d 906 (7th Cir. 1995) Submitted July 6, 1995. Decided July 7, 1995

Before FLAUM, RIPPLE and KANNE, Circuit Judges.


ORDER

Delanney Gordon pleaded guilty to setting fire to a building in which two firefighters died trying to extinguish the blaze. As part of the plea agreement, the government presented a motion asking the district court to reduce Gordon's sentence due to his substantial assistance in the prosecution of his codefendant. At the sentencing hearing, Gordon requested a further departure based on his remorse, diminished mental capacity, and because the crime was a single act of aberrant behavior. The district court granted the government's motion but declined to depart further. The court sentenced Gordon to 240 months imprisonment.

Gordon requested that his attorney appeal the district court's decision not to depart further, and counsel complied with his client's instruction. Subsequently, counsel filed a Circuit Rule 51(a) motion to withdraw from the case because he finds no meritorious arguments in Gordon's appeal. Counsel also filed a brief required by Rule 51 and by the Supreme Court in Anders v. California, 386 U.S. 743 (1967). We informed Gordon of his opportunity to respond to the motion and brief, but Gordon did not file a response.

As a general rule, circuit courts do not have jurisdiction to review district court decisions not to depart from the Guidelines. United States v. Schechter, 13 F.3d 1117, 1119 (7th Cir. 1994). An exception to that rule allows sentencing review if the district court labored under the notion that it did not have the authority to depart from the Guidelines if certain factors are present. Id. The exception does not apply in this case. The sentencing transcripts reveal that the district court was aware of its authority to depart, but declined to exercise that authority due to the deaths of the two firefighters. We do not have jurisdiction to review the district court's sentencing decision in this case.

We have reviewed the record on appeal and find no other nonfrivolous arguments for appeal. For this reason, we grant counsel's motion to withdraw and dismiss Gordon's appeal.

MOTION GRANTED; APPEAL DISMISSED.