03-4233 U.S. v. Abimbola-Amoo

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“Amoo singles out two brief comments in the lengthy sentencing transcript that might ‘reveal some indecision on the part of the judge about [his] authority to depart.’ See Hernandez, 330 F.3d at 988. She infers that by framing the issue as whether a United States court should ‘ever’ consider a successive foreign punishment, the court was necessarily exploring the question as a categorical legal matter. Yet in the very next paragraph, the sentencing judge opined that Nigeria’s laws are for Nigeria alone, and that Amoo’s prospect of future imprisonment in Nigeria was not the concern of a United States court. Like the district court in United States v. Wright, 37 F.3d 358, 361 n.3 (7th Cir. 1994), the sentencing judge made a value-laden judgment that foreign incarceration should be a matter for the foreign jurisdiction. This decision was the essence of discretion, and we may not second-guess it.

“Amoo further notes that at the end of the sentencing hearing the district judge volunteered that Amoo should consider appealing the departure decision. Although a sister circuit has noted under similar facts that district judges must know there will be no appellate review of a refusal to depart ‘unless it was based on lack of authority to depart,’ United States v. Taylor, 286 F.3d 303, 305 (6th Cir. 2002), we are unwilling to take such a narrow view. In Taylor, the district court also stated explicitly that it did not believe it had authority to depart, so the reviewing court was not faced with deciding whether an errant comment about appellate review would be enough to compel a conclusion that the court thought it lacked discretion to depart. Id. Here, by contrast, Amoo has mere inference, not an explicit assertion, that the district court believed it had no discretion. In this context, the district court’s brief allusion to appellate review weighs little in our assessment.

“Thus, although the sentencing transcript leaves some room for doubt, we hold that the district court exercised its discretion not to depart downward, a decision that we are without jurisdiction to review.”

Dismissed.

Appeal from the United States District Court for the Northern District of Illinois, Holderman, J., Kanne, J.