USA v. Armando Cook

Filing

Opinion issued by court as to Appellant Armando Cook. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11562

Date Filed: 02/06/2017

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11562
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20626-JEM-3

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO COOK,
a.k.a. Mondo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 6, 2017)

Before JORDAN, ROSENBAUM, and EDMONDSON, Circuit Judges.

Case: 16-11562

Date Filed: 02/06/2017

Page: 2 of 3

PER CURIAM:

Armando Cook appeals his concurrent 151-month sentences, imposed after
he pled guilty to conspiracy to possess with intent to distribute cocaine and cocaine
base, in violation of 21 U.S.C. § 846, and possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1). He contends that the district court
erred by denying his request for a downward departure from his criminal history
category. He argues that his criminal history category of VI overstates his criminal
history because he had convictions of only minor violations for an extended period
before the investigation into the offenses at issue began.
We review de novo our subject-matter jurisdiction. United States v. Moran,
778 F.3d 942, 982 (11th Cir.), cert. denied, 136 S. Ct. 268 (2015). We “lack
jurisdiction to review a district court’s discretionary refusal to grant a downward
departure unless the district court incorrectly believed that it lacked the authority to
depart.” United States v. Croteau, 819 F.3d 1293, 1310 (11th Cir.), cert. denied,
137 S. Ct. 254 (2016).
A district court is not required to state on the record that it believes it does
have the authority to depart. United States v. Dudley, 463 F.3d 1221, 1228 (11th
Cir. 2006). “We will assume the sentencing court properly understood its authority
[to depart] absent a record indication to the contrary.” Moran, 778 F.3d at 982
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Case: 16-11562

Date Filed: 02/06/2017

Page: 3 of 3

(assuming that a district court understood its authority to depart where the court
“did not express a belief that it lacked authority to depart”); see also Croteau, 819
F.3d at 1310 (concluding that the record demonstrated a district court fully
understood its authority to depart where the court listened to arguments and
testimony on departure before denying a departure request).
“If reliable information indicates that the defendant’s criminal history
category substantially over-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes, a downward
departure may be warranted.” U.S.S.G. § 4A1.3(b)(1), p.s. A downward departure
for a career offender may not exceed one criminal history category. Id.
§ 4A1.3(b)(3)(A), p.s.
We lack jurisdiction to review the district court’s discretionary denial of
Cook’s request for a downward departure. See Croteau, 819 F.3d at 1310. The
district court had discretion to depart by one criminal history category because
Cook was sentenced as a career offender. See U.S.S.G.§ 4A1.3(b)(1), (3)(A), p.s.
But the record does not reflect that the district court incorrectly believed it lacked
the authority to grant such a departure, and we therefore assume the district court
properly understood its authority to depart. See Moran, 778 F.3d at 982.
Accordingly, we affirm Cook’s concurrent 151-month sentences.
AFFIRMED.
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