37 F. 3d 1496 - United States v. Lark

Jeffrey Evans Lark entered a guilty plea to one count of engaging in a continuing criminal enterprise, 21 U.S.C.A. Sec. 848 (West Supp.1994) (Count One), and two counts of money laundering, 18 U.S.C.A. Secs. 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) (West Supp.1994), 18 U.S.C. Sec. 2 (1988) (Counts Nine and Ten). On the government's motion for a departure based on Lark's substantial assistance,* the district court departed below the guideline range and the mandatory minimum sentence of 240 months to impose a sentence of 228 months. Lark appeals this sentence, contending that the court failed to give an adequate explanation for the sentence and that the extent of the departure was insufficient. We dismiss the appeal.

The extent of a downward departure is not an issue subject to appellate review when it is raised by the defendant. See, e.g., United States v. Doe, 996 F.2d 606, 607 (2d Cir.1993) (listing cases). Consequently, we need not address the district court's failure to explain its reason for departing to a sentence of 228 months, rather than 210 months as requested by the government.

We therefore dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.