968 F. 2d 22 - United States v. R Perrotti

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Charles R. Perrotti appeals from the sentence imposed upon him under the Sentencing Guidelines for bank fraud in violation of 18 U.S.C. § 1344(a)(1). He contends that the district court erred in refusing to exercise its discretion to depart downward from the sentencing guideline range, and by failing to credit him for time spent in custody on another charge. Perrotti's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he acknowledges that a conscientious examination of the record discloses no incorrect application of the guidelines or other illegality regarding the sentence imposed upon Perrotti, as required by 18 U.S.C. § 3742(a). As Perrotti's counsel correctly points out, this court has no jurisdiction to hear an appeal from the district court's discretionary refusal to grant a downward departure. United States v. Havens, 910 F.2d 703, 706-07 (10th Cir.1990), cert. denied, 111 S.Ct. 687 (1991); United States v. Richardson, 901 F.2d 867, 870 (10th Cir.1990); United States v. Davis, 900 F.2d 1524, 1529-30, (10th Cir.), cert. denied, 111 S.Ct. 155 (1990). Furthermore, as counsel also acknowledges, Perrotti is not entitled to credit for time served as a result of another and prior sentence. 18 U.S.C. § 3585.

Rather than dismiss the appeal on jurisdictional grounds, we review the sentence because of the allegation that the district court failed to credit time previously served, and AFFIRM the sentence imposed by the district court. The motion to withdraw filed by Perrotti's counsel is GRANTED.