Wednesday, September 27th, 2006

District Court’s Refusal to Depart Not Appealable

United States v. Stinson, Docket No. 05-5336-cr (2d Cir. Sep. 26, 2006) (Winter, Cabranes, Pooler) (per curiam): This very short opinion clarifies that, post-Booker, litigants still cannot appeal from a district court’s discretionary refusal to depart (subject only to the “misapprehension of authority to depart” exception). Though this is well-settled law, e.g., United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005), some of you out there (and you know who you are) apparently have not gotten the message. So stop raising those “failure to depart” arguments!

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