UNITED STATES of America v. Eric Darnell TATE, a/k/a et Erick Darnell Tate, Appellant, 41 F. App'x 541

OPINION ROTH, Circuit Judge. Appellant Eric Darnell Tate appeals the September 18, 2001 Judgment of the United States District Court for the Western District of Pennsylvania that sentenced him to 188 months imprisonment followed by five years of supervised release. Specifically, Tate argues that the District Court erred by refusing to make a downward departure to his sentence. We will dismiss Tate’s appeal in part and otherwise affirm the judgment of the District Court.

On June 12, 2001, Tate pled guilty to one of two counts of distributing five or more grams of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B)(iii). For sentencing purposes, the District Court considered Tate a “career offender” because he had two prior felony convictions, including one “crime of violence” and one “controlled substance offense.” See United States Sentencing Commission, Guidelines Manual § 4B1.1 (2001) (hereinafter “U.S.S.G.”). In accordance with U.S.S.G. § 4B1.1, the District Court sentenced Tate to a more lengthy sentence than it would have had Tate not been considered a career offender.

As suggested above, however, Tate does not challenge the District Court’s conclusion that he qualifies as a career offender under U.S.S.G. § 4B1.1. Rather, he makes two arguments that the District Court erred in declining to depart downward from the sentence prescribed by the career offender provision. First, Tate invites us to review anew the merits of his plea for a downward departure, arguing that the predicate offenses on which his career offender status is based overstate his criminal history and likelihood of recidivism.

Tate’s second argument concerns a police report written in connection with his 1994 aggravated assault conviction — one of the two predicate felony convictions on which his career offender status is based. In this second argument, Tate contends that the District Court erred by considering an unproven allegation made in the report that Tate possessed drugs at the time of the assault.

We must dismiss Tate’s first argument for want of appellate jurisdiction. ‘We lack jurisdiction to review a refusal to depart downward when the district court, knowing it may do so, nonetheless determines that departure is not warranted.” United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir.1996). The transcript of Tate’s sentencing hearing makes clear that the District Court was aware of its authority to grant a downward departure. See Appendix at 20a. Indeed, the District Court explicitly referenced the sources of this authority. See id. (citing United States v.

Shoupe, 35 F.3d 835, 836 (3d Cir.1994) (acknowledging authority of district court to make a downward departure from § 4B1.1 guidelines where defendant’s criminal offender status overstates his criminal history and likelihood of recidivism) and U.S.S.G. § 4A1.3 (policy statement authorizing such departures)). Therefore, we cannot review anew the merits of the District Court’s decision. While we can address Tate’s second argument since it alleges legal error, we find the argument to be without merit.

The District Court properly considered the police report’s allegation of drug possession, notwithstanding the fact that Tate was neither charged with nor convicted of this criminal conduct.

Section 4A1.3(

e) of the Guidelines specifically allows the district courts to consider uncharged prior criminal conduct of a similar nature in making departure determinations. See U.S.S.G. § 4A1.3(e). Moreover, Tate’s second objection must also fail to the extent that it challenges the admissibility of the drug possession allegation as hearsay. Subject to certain exceptions and limitations not applicable here, the Federal Rules of Evidence do not apply in the context of sentencing determinations. See Fed.R.Evid. 1101(d)(3); United States v. Dass, 38 Fed.Appx. 714, 2002 WL 549103, 2002 U.S.App. LEXIS 6803 (3d Cir.2002).

Rather, “[i]n resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). See also United States v. Brothers, 75 F.3d 845, 848 (3d Cir.1996) (applying the same standard specifically to heai'say). Tate does not allege that the police report lacked sufficient indicia of reliability, and we find no support for such a conclusion in the record.

For the foregoing reasons, we will dismiss Tate’s appeal in part and otherwise affirm the September 18, 2001 Judgment of the Distxict Coxxrt. .

Section 4B1.1 provides increased offense statutory maximum sentences and offense levels for crimes committed by a career offender. It states that: A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1. . See e.g., United States v.

Georgiadis, 933 F.2d 1219, 1222 (3d Cir.l991)("we have jurisdiction to decide whether a sentencing court erred legally when not making a requested discretionary downward departure”).