In United States v. Dowell, No. 03-2747 (7th Cir., Oct. 27, 2004), a unanimous three-judge panel held that a district court's informed refusal to depart downward is non-reviewable.
This court determined in United States v. Franz that a district court’s refusal to depart downward may only be reviewed if the sentence was imposed in violation of the law. Thus, we review the sentence only if there is a legal error involved. There is no legal error, and therefore no jurisdiction for appellate review of a district court’s refusal to depart downward, when the district court understood that it had the legal authority to depart but, in its discretion, chose not to do so.
The court appreciated the prosecutor's building a record of informed discretion:
[T]he Assistant U.S. Attorney wisely made sure that this understanding was included in the record. This is a procedure we encourage. The sentencing transcript shows the following:
ASSISTANT U.S. ATTORNEY: Judge, just to be sure that the record is clear, the Court recognizes it has the authority to depart downward but has refused to as a matter of its discretion?
THE COURT: Yes. Yes, I think—that is my decision. Obviously, I gave a lot of thought to it beforehand. And the judgment isn’t signed yet, but I think that that is probably, frankly, the best thing for, not only society and the law, but for Mr. Dowell, given the options that exist right now.