UNITED STATES of America, v. Dion M. ALLEN, a/k/a "Fathead", Appellant, 29 F. App'x 819

MEMORANDUM OPINION OF THE COURT PER CURIAM. Because we write for the parties only, the background of the case need not be set out. We reject the appellant’s argument that this Court has jurisdiction to review this appeal, which involves the District Court’s discretionary refusal to grant a downward departure under U.S.S.G. § 4A1.3. We therefore dismiss the appeal.

Athough this Court is without jurisdiction to review the District Court’s discretionary refusal to grant a downward departure from the applicable Sentencing Guidelines range, this Court does have jurisdiction over an appeal from a District Court’s refusal to depart downward when it believes that it lacks the authority to do so. United States v. Higgins, 967 F.2d 841, 844 (3d Cir.1992). In this case, the defendant asked for a downward departure on a ground that is well recognized in the case law, namely, that his criminal history overstated the severity of his past offenses.

Both parties presented relevant case law to the District Court supporting its discretionary authority to grant a downward departure, if it found such a departure warranted in this case. The government conceded that the District Court had the power to grant the downward departure, while arguing that it should not do so given the facts of this case. The District Court ultimately agreed with the government’s position.

Athough the District Court said that it saw no “basis” for granting the downward departure, we interpret that statement to mean that the facts here did not warrant the downward departure under prior precedent. This

interpretation is bolstered by the District Court’s statement that it could see no basis for the departure “in this case.” Under this reasonable

interpretation, the District Court’s conclusion would be an unreviewable discretionary refusal to depart. We have considered all of the defendant’s arguments and see no basis for finding jurisdiction over this appeal. Therefore, we dismiss the appeal for lack of jurisdiction.