United States v. Belzel

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 11, 2000
• Docket: 99-50960
• Status: Unpublished

Opinion

No. 99-50960 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50960 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL LEE BELZEL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-99-107-1-SS --------------------\ April 11, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges

PER CURIAM:*

Michael Lee Belzel appeals his sentence following his

guilty-plea conviction for one count of being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g) and

924(a).

Belzel argues that the district court erred by not granting

him a downward departure under U.S.S.G. § 5K2.11, p.s., because

the district court mistakenly believed that it did not have

authority to grant a departure under this provision. United

States v. Lugman, 130 F.3d 113, 115 (5th Cir. 1997). However, we

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-50960 -2-

have no jurisdiction to review the district court’s decision to

deny Belzel’s request for a downward departure because the record

indicates that the district court determined that the facts in

Belzel’s case did not warrant a downward departure. See United

States v. Carmouche, 138 F.3d 1014, 1018 (5th Cir. 1998).

Belzel also argues that the district court erred by

enhancing his base offense level for possessing a sawed-off

shotgun when his indictment did not specifically charge him with

having such a weapon. This argument is meritless because the

type of firearm a defendant possesses is not an essential element

to be proved for conviction under § 922(g). See United States v.

Munoz, 150 F.3d 401, 417 (5th Cir. 1998), cert. denied, 525 U.S.

1112 (1999). Accordingly, Belzel’s sentence is AFFIRMED.