*1 Accordingly, guidelines.9 we are rized authority to review the extent of the
without departure below the minimum
district court’s
fine level.
Conclusion Young’s to incarceration and
Mr. Young’s Mr.
supervised release is affirmed. $10,000
challenge fine is dismissed for jurisdiction.
lack of part, part.
AFFIRMED Dismissed America,
UNITED STATES of
Plaintiff-Appellee, “Rusty”
Russell PREVATTE and Robert Soy, Defendants-Appellants.
A. 94-3360,
Nos. 94-3361. Appeals,
United States Court of
Seventh Circuit.
Argued May Sept.
Decided Sanchez-Estrada, 995; Gomez,
9. See 62 F.3d at United F.3d at 927. Gibbs, (7th Cir.1995); States v. *2 part, appeal part and dismiss the
verse appellate jurisdiction. for lack of BACKGROUND A. Facts set forth the facts relevant to this We Prevatte, litigation in United States v. F.3d 767 We assume famil- iarity opinion. summary, In with Rus- Prevatte, high Doug- sell school friends Williams, Bergner Jerry las and commenced burglaries a series of in 1990. individual, Soy, joined fourth Robert them. Williams, probationary police officer with Department during the Hammond Police fall of attended the Indiana State Police Academy September through from De- Academy, cember 1991. While at the he displayed explosives an interest and re- academy library, searched bombs in the through academy well as instructors. sug- Prevatte later read a book had Williams Cookbook, gested, the Anarchists and the Baker, Jr., Atty., Andrew B. Asst. U.S. discussed, two when Williams was home from Attorney, Dyer, Office of the United States weekends, academy on how to manufac- (argued), IN and Donald J. Schmid Office of pipe them ture bombs and how to use near Bend, IN, Attorney, the United States South diversionary gas meters as a tactic for bur- plaintiff-appellee. for glaries. (argued), Berwyn, Alexander M. Salerno 23, 1991, Soy and On December Prevatte (argued), IL and Robert A. Palos Stevenson pipe in a detonated the first bomb residential Park, IL, defendants-appellants. alley Whiting, “test” Indiana. This bomb- designed ing apparently was to measure the POSNER, RIPPLE, Judge, Before Chief gauge damage caused the bomb and to NORGLE, Judge, Circuit and District emergency response time of services so Judge.* burglaries synchronized that later could be accordingly. punctured gas me- The bomb RIPPLE, Judge. Circuit fifty away ter feet and resulted some Antkowicz, Emily elderly After the district court reconsidered their death of an woman sentences, Prevatte, alley backyard and who see United States v. 16 whose abutted (7th Cir.1994), Russell about thirteen feet from the bomb at the F.3d Prevatte was Soy explosion. Robert were each resentenced to 636 time of It is this incident led imprisonment maliciously charge and that is before us months of dam- aging destroying property by appeal. The later criminal means of an this second 844(i). activity their explosive, in violation of 18 of these two defendants and U.S.C. in our appeal that sentence. For confederates is set forth detail reasons, repeated following part, opinion affirm in and need not be re- earlier Sr., Norgle, sitting by designation. *The Honorable Charles R. Illinois, Division, Northern District of Eastern murder, 2A1.1, grand jury degree say it to that a for first U.S.S.G. here. Suffice closely twenty-one provided analogous guide- the most count indictment returned a Second, that, Soy. Among other line. the defendants contended against Prevatte 844(i), im- grand jury charged the defen under sentences things, the recommendation, (1) maliciously conspiring posed only pur- after dants with: *3 § destroy of an suant to 18 34. We held that the damage property or means U.S.C. 844(i); degree guideline § of 18 first murder was indeed explosive violation U.S.C. (2) destroying prop applicable charged crimes. maliciously damaging or We stated: erty by explosive an in violation of means of bombing believe that the at issue is [W]e (3) firearm, 844(i); making § and 18 U.S.C. sufficiently apply to similar arson the device,” in statutorily termed a “destructive degree guideline first murder on this basis. 5861(f) 5845(f), §§ and violation of 26 U.S.C. understanding This conclusion rests on our § 18 U.S.C. language history and of 844(i). § Soy jury of four-
A
convicted Prevatte
twenty-one
indict-
teen of the
counts of the
Prevatte,
767,
v.
16 F.3d
780
ment, including the
of 18
violation
U.S.C.
that,
also noted
in inter-
We
844(i)
Emily
§
involved the death of
844(i)
statutory language
§
preting the
sentencing,
At
the defendants
Antkowicz.
conjunction
§
with 18 U.S.C.
it is unlaw-
apply
that the district court should
submitted
impose
jury
ful to
a life
absent
guideline
degree
for second
murder as
direction. Because the issue of the life sen-
closely analogous
the one most
to the convic-
jury,
tence had not been submitted to the
disagreed.
tion. The district court
The
imposition
held that
of a life sentence
23, 1991 test
court found that the December
was reversible error. We also noted that the
was,
bombing
meaning of
stat-
within the
any analy-
district court had not undertaken
ute, an act of arson because it involved de-
sis of the mental state of the defendants as
property.
imposition
At the
struction
application
1
mandated
note
to U.S.S.G.
sentence, the court first noted that 18 U.S.C.
§
application
recognizes
2A1.1. That
note
844(i)
court
refers
U.S.S.G.
appropriate
that a life sentence
not be
2K1.4(c).
That section in turn directs the
degree
all
convictions of first
murder and
analogous” guideline
court to the “most
of-
departure “may
that a
*4
F.3d
903
challenge
submit one
to
The defendants
We turn now to
case
the
before us. The
Soy
their sentence. Prevatte and
contend
parties suggest different
of
characterizations
resentencing
in
that the district court erred
the defendants’ contentions. The defendants
depart
impos-
in
because it did not
downward
questions
cast those contentions
terms of
sentence,
ing a
as it had stated it would.
juris-
appellate
of law order to invoke our
Restated,
the
have asked this
government urges
diction. The
that the de-
court to determine whether the district court
bottom,
presented,
fendants have
a con-
§
properly applied guideline
2A1.1.
depart
tention that the district court did not
sufficiently,
downward
an issue over which
jurisdiction.
do not
we
We believe that
begin
We
our review with a state
the most accurate estimate of the situation
ment of the basic limitations that circum
competing
contains elements of both of these
authority
sentencing
scribe our
to review
characterizations.
By
determinations of the district courts.
command,
outset,
statutory
our
of a
At
do
review
sentence
the
not believe that
question
is limited to
in which the sentence was
there is a serious
eases
about our authori
(1)
(2)
law,”
“imposed
“imposed ty
of
to
violation
determine whether the district court
complied
application
as a result of an incorrect
of the
with our directions from the first
(3)
sentencing guidelines,”
appli
appeal.
appellants
To
that
“outside the
the extent
the
(4)
issue,
guideline range,”
cable
“unreasonable.”
raise that
we can consider it.
In our
3742(e), (f);
§§
opinion,
earlier
we directed the district court
18 U.S.C.
see United States
(7th
Sablotny,
impose
21
n. 2
other than life
to
F.3d
to
Cir.
1994).
cases,
applicability
application
those
which we do have
consider the
note
jurisdiction,
im
turn
we must evaluate sentences
to U.S.S.G.
2A1.1. We
first to the
posed
under the
defer
issue of whether the court
a life
Guidelines
“due
Martin,
application
ence” to the district court’s
of the
sentence.
In United States v.
(7th Cir.1995),
specific
Guidelines to the facts of the
ease. F.3d 1422
this court held that
3742(e);1
legislatively
sentencing
see United States v.
“where a
enacted
Randall,
Cir.1991).
expressly deprived
has
a court of the
scheme
scheme,
sentence,
statutory
possibility
imposing
this
a life
a sen
As
result
this
review,
jurisdiction
years exceeding
court lacks
at the re
tence for a term of
the de
defendants,
quest
approximate
of the
a district court’s
fendant’s
discretionary
depart
ordinarily
an abuse of discretion.”
refusal
downward
constitute
sentencing range
sentencing,
at 1434. At the time of
from the
determined
the
or to
the
the district court did not have the benefit of
Guidelines
review
extent
guidance
in Martin. There-
departure.
downward
United States v.
the
contained
3742(e) states,
pertinent part:
cept
findings
the
of fact of the district court
Section
clearly
give
they
shall
unless
are
erroneous and
appeals
give
regard
The court of
shall
due
application
due
to the district court's
opportunity
deference
of the district court to
witnesses,
credibility
guidelines
ac-
to the facts.
and shall
range
depart
guideline
not to
from the
fore,
to 636 or
the defendants
incarceration,
obliged,
quite
degree,
court
un-
it was
murder
the first
months of
on the standard
derstandably did not focus
depart,
to im-
once it made the decision
Accordingly, we
in Martin.
now set out
im-
that would have been
pose
ought to revisit the
court
believe
degree
appel-
posed for second
murder. The
Deter-
guidance
Martin.
matter with
point
district court found
lants
out that the
expectancy of the individual
mining the life
placement
and detonation
ought
to be ad-
is a matter
defendant
amounted to “recklessness and reck-
bomb
district court.
dressed
of mind and behavior.” Their con-
less state
punished,
we also directed the
there-
appeal,
In our earlier
duct should have been
applicability
degree
court to consider
argue,
district
as second
murder.
fore
application note 1 to
2A1.1 of the Guide-
note 1 as cabin-
application
do not read
We
earlier,
mentioned
lines. As we have
ing the discretion of the district court to that
that, when the conviction of
provides
note
explicitly
degree.
application
quite
note
predicated
theory
on a
degree murder is
first
pre-
suggests
departure
that a
below that
killing,
impris-
premeditated
than
other
degree
for second
murder or
scribed
necessarily
appropriate
onment is
likely
appro-
underlying offense is not
to be
circumstances,
that, in such
sentence and
hardly a directive to
priate. This notation is
“may
departure
be warranted.”
downward
*5
must,
any departure
that
as
the district court
court, therefore,
Our direction to the district
law,
a matter of
reduce the sentence
whether, on the facts of this
was to consider
degree
To hold that
level
second
murder.
case,
departure
a downward
was warranted.
correspond
departure
must
to the base
complied
court
with our mandate
district
2A1.2,
possibility
stipulated
§in
Second
the
of a lower
offense level
when
considered
sum,
Murder,
Degree
every
In
the district court
court
sentence.
effec-
time the
finds
by
tively carried out this court’s order
de-
less than
that a defendant’s mental state was
upon
parting to an extent based
the defen-
“intentionally
knowingly,”
or
U.S.S.G.
cf.
(recklessness
comment,
negli-
mind
dants’ “state of
(n.
2A1.1,
1),
negate
§
the
gence),
degree of
in the
the
risk inherent
congressional determination that death re-
conduct,
underlying
and the nature of the
felonies,
arson,
sulting from certain
such as
2A1.1,
conduct.” U.S.S.G.
com-
offense
punished,
degree
not
should be
as second
1).
(n.
ment.
murder,
degree
as
murder.
If the
but
first
only
Congress
that
murders
had intended
Having
that
the district
determined
premeditated
explo-
and involved
were
mandate,
complied
our
court
with
we now
degree,
sions be treated as first
there would
remaining contentions. As we
examine the
begin
sentencing analysis
be no reason to
the
earlier,
normally
jur
have noted
we
have no
2A1.1,
Murder,
Degree
with
First
review,
request
at the
isdiction
Indeed,
by
mandated
defendant, the decision of the district court
district court’s redetermination of the sen-
ought
depart
as to whether it
downward
tence in this case demonstrates the need for
and,
so,
departure.
if
the extent of that
flexibility
application
gives
that the
note
Shaffer,
Dean,
cert.
Cir.1990),
reasons,
For the
aforementioned
we affirm
denied,
part,
part,
115 in
reverse in
U.S.
S.Ct.
and dismiss the
(1991).
appeal
part
appellate jurisdie-
for lack of
*6
L.Ed.2d
Tr. II
people
wanted.
proximity.
At Mr.
vacant
Antkowicz was not caused
would not
people
Court's
ty is in this Court's
especially
where there would be
reckless acts and behavior....
close
by
reaction time of
fore,
ed
dences and
less behavior.
demand
at
even the defendants’
and
did
And I have also note
Four. The
And
Two. That the defendants wanted to check
By
[T]his
or
far
and
this
defendant,
produced
at
the defendants
the
near the
proximity
extremely
again,'
lived,
live,
2223-24
opinion,
lot far
hoped
Soy’s resentencing,
quick
Court finds that the death of
where homes were in close
placing
opposed
get
By
and
especially
and
placing
as I
a
reaction of
would
the results that the defendants
but
placement
away
the
pipe
and was
(emphasis supplied).
reckless
police
especially
especially
is not
had
of an active
instead
opinion
placing
picked
bomb which
of an active bomb where
attorneys
picking
get enough
from active residences
where homes were in
no
indicated
(sic)
behavior.
by
negligence,
by
police
pipe
residences
close to their resi-
where
by
far
a residential area
the court stated:
not
that in the letter
of a bomb in a
a field or a farm
the defendant's
bombs;
extremely
indicated that
negligent
negligence
bomb
and firemen.
earlier,
people
they expect-
attention
bomb,
proximi-
in
in this
where
Emily
there-
close
lived
reck-
they
but
3. 18 U.S.C.
IVTr.
prisonment.
reduce the term of
lowered
this was
28-94.
Prisons,
except that—
sion.
the extent that
ering the factors set forth in section
defendant or
of
ant to 28 U.S.C.
sentenced to term of
reduction is consistent with
statements issued
(c)
sentencing range
tors set forth in section
warrant such a
the Bureau of
of
(2)
(1)
(A)
(1) extraordinary
imprisonment
Modification of
imprisonment,
at 2203-04
in
in the case of defendant who has been
[*]
the
they
basically
by
any
or on its own
court,
—The
[*]
3582(c)
are
case—
Sentencing
upon
[§]
Prisons, may
applicable,
(emphasis supplied).
a reckless
court
by
[*]
once it has been
reduction;
Director of
imprisonment, after consid-
that has
and
944(o), upon
after
in relevant
an
are
motion of the Director of
imprisonment
motion,
may modify
compelling
imposed
[*]
applicable, if such a
Sentencing
3553(a)
considering
Commission
act,
subsequently
not
if it finds that—
applicable
reduce the term
[*]
the letter of 7-
the court
part provides:
motion of the
term of im-
to the extent
Bureau
reasons to
3553(a)
[*]
based on
Commis-
imposed
the fac-
pursu-
a term
policy
been
may
ished”)
system
pa-
important.
In a
court
ad-
is
the district
remand
tion. On
role,
parole
the life
a term of
means what the
to ensure that
just
parole
ap-
is
it to mean. Before
for
of the defendants
board wants
expectancy of each
(effective
away
prisoners
swept
federal
was
propriately considered.
1987)
Sentencing
Act
Reform
part
part, Reversed
AFFIRMED
1984, prisoner
eligible
parole
for
after
was
part
Dismissed
or 10
served one-third of his sentence
he had
years, whichever came first.
18 U.S.C.
POSNER,
Judge, concurring.
Chief
4205(a).
if he
sentenced to 100
So
was
court,
add
join
opinion of the
but
prison,
for that matter to life in
issue.
thoughts on the life-sentence
some
eligible
parole
for
after
prison, he would be
difficult, and unfor-
exceptionally
is
The issue
years,
years. A sentence to a term of
no
difficulty
disproportionate to
tunately
is
long,
of life
matter how
was not a sentence
than to the two
importance other
its actual
nor,
matter,
imprisonment;
for that
was a
potentially
much
But with so
defendants.
imprisonment.
sentence of life
them,
we owe
careful consider-
stake for
ation.
no differ
It did
follow
there was
imprisonment
a sentence of life
ence between
year,
criminal code
last
the federal
Until
years,
and one of 30
the shortest sentence
imposition of a life sentence for
forbade
eligibili
produce
that would
the same date of
airplanes,
involving the destruction of
crimes
ty
parole
imprison
as a sentence of life
vehicles,
storage
places
or their
motor
judge’s
ment. The
choice between these sen
jury recommended a life sentence.
unless a
gravity
signal
his view of the
tences
(The requirement
§ 34.
of a
conduct,
might influ
the defendant’s
and this
repealed
was
the Violent
recommendation
actual,
parole
ence the
board’s choice of the
Act
and Law Enforcement
Crime Control
possible, parole
as distinct from the earliest
there is no contention that
authority,
date. There was even
based on 18
case.)
repeal affects this
There was no such
4205(b)(1),
could,
judge
that the
U.S.C.
the first
this case. So
recommendation
to a term of
in excess of 30
we vacated the life
time this case was here
years, postpone
eligibility
the date of
that the district
had
sentences
parole beyond
years. E.g.,
16 F.3d
783-85
on the two defendants.
Tidmore,
Cir.1990);
mends life Adding to the bramble bush of Federal defendants, case, involving younger the sen- Sentencing interpretation, Guidelines trial do not exceed the defendants’ life tences courts are now determining faced with life if, done, expectancies as I believe should be expectancy sentencing when in certain cases. subtracted, good-time maximum credits are Judges must be ever conscious of the risks of view, unless, contrary my individual life information, interpreting statistical especially expectan- expectancies group rather than expert in the of testimony. Judges absence cies are used and the defendants can show exercising power long-term awesome poor poor genes that health or because sentencing sight must not lose of the individ- likely other factors to live as are standing ual before the court. Our common long average member of their demo- experiences in express life lead us to concern graphic group. Martin does not resolve application precise about the classifica- concerning good-time these issues credits eloquently by tions mentioned so Judge Pos- group expectancies and individual versus we, instance, ner. Will longevity confront (and group), I the bounds of the and inter- regarding issues smokers versus non- pret Judge Ripple’s opinion for the court in longevity smokers? Will we consider the present open case to leave them as well. general popula- federal inmates versus the difficulty appropriate light This is in tion? will longevity How we deal with the briefing the issues and the absence of particular a defendant not of a race but of argument directed to them and a factual heritage? mixed racial “Because of the risk bearing record on them. may that the factor of race enter the criminal justice process, engaged we have in ‘unceas- passage quoted The from Martin that I ing prejudice efforts’ to eradicate racial from quoted Judge Ripple’s and that is also justice system.” thumb, McCleskey our criminal opinion good keying states a rule of 1756, Kemp, 481 U.S. 107 S.Ct. the maximum sentence to the defendant’s life (1987) (citing L.Ed.2d 262 Batson v. Ken- expectancy. rigid It not a is rule that all tucky, 476 U.S. exactly S.Ct. equal circumstances a sentence (1986)). L.Ed.2d 69 expectancy per defendant’s life is se com- pliance with section while a expectancy computations Life in multi-de- expectancy day exceeds that life even a is- cases, fendant where the defendants are of (Should per se violation of the statute. a varying ages, genders, require and races will arson, 90-year-old unduly might commit reflection, consideration, great careful depreciate gravity of his act to sentence significant fact-finding. Numerous cases years equal him to a term of to his life the federal courts involve an international expectancy.) required judge’s What is is the instance, foreign clientele. For choice of a fulfill reasoned will nationals who commit crimes the United purposes post-parole of section 34 in the complicated. States Life tried, amplification I world. of Mar- country country. varies from As demon- ease, majority opinion tin and of the in this Intelligence Agency’s strated the Central to indicate some of the considerations Factbook, expectancies the life World bear on choice. greatly: differ Projected 1990-1995 NORGLE, Judge, concurring. District Country Average Expectancy Life join opinion of the court and write to years Brazil 66.2 first, emphasize points: suggest two years India 60.4 dangers giving weight excessive to and the Nigeria 52.5 application risk of the drawn inferences Rwanda 46.2 general specific from statistics to a 75.8 sentenc- United States *10 ous, the obvious was not. Intelligence because some Central The (1994). record, judge may As I see the the trial well Indi- The World Factbook Agency, my colleagues have done what I and for federal felonies being sentenced viduals direct, is, years a to choose a term of doubled-edged sword exposure to a risk will eligible for a life sentence general statistics. defendant not from drawn of inferences necessarily significantly, though not life which is apply United States the court Should of life visiting greatly, less severe than sentence expectancy tables when said, judge trial “I imprisonment. in a federal When the serve her time Rwandan who will years, him visiting expect Brazilian na- to live unless don’t prison? How about (Re-Sen- family,” Though long genes in his crime? there’s tional commits a federal who 2211) 15, may here, tencing, vol. at he have satis- may it indeed be difficult at issue concern, Judge legitimate judge to look at several defen- fied Posner’s for the trial why person join, sentencing a justify in the record I about defendant dants and gender, origin, long national or race certain age, a term so the defendant is of one prison light (barring time in more or less incarcerated some medi- will receive to die while unforeseen). general statistics. yet drawn from of inferences cal miracle as The sentenc- of the reasons trial court’s articulation ing judge engaged quick indepen- The in a involving expec- particular for a reasoning process beyond dent intuition. great importance. tancy will be of judge The does not show that record sentenced the defendant to a term that would bar, ease at the defendants are two undoing trick.” is not the “do the The here region from the same white male citizens brevity of reflection but the of artic- absence Both received the same the United States. regarding ulation the difference between a same, That the sentences are the sentence. and a sentence for a term of life sentence however, does not illustrate the absence of years. thoughtful imposition of individualized sen- Indeed, tences. the trial record and the probabili- contemplated The trial court sentencing hearing articulation at the court’s ty period years of some after the defen- rejected reflect otherwise. The trial court custody. dants served their time The government’s position that “the court can judge reading belabored the record from Soy any years, if Mr. number of page printed all of the conditions of long L-I-F-E pleases, as the words supervised including reporting to a release (Re-Sentencing, vol. at aren’t there.” officer, supervised working release at a law- 2206.) And “the term of 100 would be restrictions, occupation, geographical ful sub- appropriate particular in this case so that as mitting reports written within the first five Soy to not allow Mr. ever return month, days period of each and so on. The streets_” (Re-Sentencing, vol. at supervised years. release was five 2206.) merely might argue judge that the Some brief, rejection, trial court’s albeit in- requirement imposing the formalistic met expectancy dicated an awareness of the life supervised Something release. more from The trial court stated: issue. judge point might trial on this off, my And unless mathematics is resolved the issue. number of that I sentenced the de- recognize expectancy I that life statistics years. Obviously, fendant was 53 it is this statutorily palladium as a for the serve give I him feeling Court’s that if rights of the individual defendants afforded life, beyond expect I that’s because don’t society early as balanced with the risks to years, long him to five 120 unless there’s agree Judge Ripple release. that on family. very genes in his There’s not key point is to ensure that the remand the far, many people go and the appropri- of each defendant is very likelihood would be small. ately district court. considered 2211.)
(Re-Sentencing, vol. forcing stops that Martin short of Aware tables, Perhaps judges the trial should have articu- district court to use actuarial present greater lated in detail what he deemed obvi- 63 F.3d at the trial court *11 time to determine a case find it difficult not extend be- prison which would
span reference to
yond without experienced trial information. The
such thoughtful analysis have the will also articulating fully Martin to assist more thus, regarding expectancy, reasoning
his
leaving to draw inference from the less record, carry attempts as he out the
cold
post-parole legislatively enacted specifically at
scheme issue. America,
UNITED STATES of
Plaintiff-Appellee, GARCIA, Defendant-Appellant.
Pedro A.
No. 94-3141. Appeals,
United States Court of
Seventh Circuit.
Argued April Sept.
Decided notes downward Two, Chapter fense from Part A. The court departure, warranted.” The extent statute, then noted that the murder continues, the note “should be based on the 1111, provides every U.S.C. murder (e.g. defendant’s state of mind recklessness perpetration attempt committed in of or an negligence), degree or risk inherent arson, perpetrate any burglary robbery, conduct, underlying and the nature of the degree. in the first is murder Because the offense conduct.” arson, charged offense was the court held resentencing, On the district court consid- degree that first murder was the most analo- ered the defendants’ state of mind. The gous offense. The court therefore deter- Emily court held that the death of Antkowicz applicable mined that assess- U.S.S.G. was caused the defendants’ “recklessness ment was: total offense level criminal and reckless state of mind and behavior.” history category Accordingly, I. the court 2223-24; IITr. see Tr. IV at 2203-04. It imprison- sentenced the defendants to life articulated two substantial factors that led ment. (1) to that conclusion: knew court, materials, appeal they using On their first explosive to this Prevatte were and ob- Soy specifically pipe court submitted the district tained information on (2) bombs; allowing picked erred to hear evidence of The defendants a residen- uncharged surrounding gauge police crimes the bomb- tial area in which to and fire ing disputed department explosions dates. Both defendants the dis- reaction time to be- trict comb’s determination on two cause were aware that such location First, grounds. challenged quick the defendants would demand time. Tr. II at reaction guideline the district court’s decision that the 2223. The court stated that it was district Blackwell, Cir.1995); from the “departing downward statute, Shaffer, not United States v. 628- by the murder called for (7th Cir.1993) (“We jurisdiction also lack Tr. II at the classification.” downward depar- to review the extent of a downward to 686 It sentenced each defendant ... can ture. We entertain neither a claim imprisonment months of on the count depart enough, that the court did not nor a Emily Antkowicz. the death involved made.”). departure claim that no was If a imprisonment im- terms of were Concurrent court departure district denies a downward remaining posed on the counts. on the mistaken belief that it lacked authori- ty depart, misapprehension we treat that II appel- as an error of law over which we have jurisdiction. DISCUSSION Canoy, late United States