United States v. Derouen

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 29, 2002
• Docket: 02-30146
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-30146 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL P. DEROUEN,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (01-CR-60029-ALL) _________________________________________________________________ August 29, 2002

Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges:

PER CURIAM:*

Daniel P. Derouen appeals his sentence following his guilty-

plea conviction of possession of a videotape containing child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). AFFIRMED.

Derouen contends that the district court erred in denying his

motion for a downward departure from the applicable guideline

imprisonment range, based on his contention that his offense was

“aberrant behavior” under U.S.S.G. § 5K2.20. Because nothing in

the record indicates the district court held a mistaken belief

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. about its discretion to depart, this claim is not reviewable on

appeal. See United States v. Wilson, 249 F.3d 366, 380 (5th Cir.

2001).

Derouen also maintains that the district court violated his

due process rights by declining to release to him ex parte letters

that contained “secret, unfavorable ... information”. At

sentencing, the district court stated that it had received some

letters that were “very favorable” to Derouen and others that were

“very unfavorable”.

No error could have occurred in this instance because the

record reflects that the district court did not rely on the adverse

letters in fashioning Derouen’s sentence. See United States v.

Lemons, 941 F.2d 309, 320 (5th Cir. 1991) (holding no error in

failure to disclose adverse letters and noting that the district

court did not rely on them); see FED. R. CRIM. P. 32(c)(3)(A) (“If

the court has received information excluded from the presentence

report under subdivision (b)(5) the court—in lieu of making that

information available—must summarize it in writing, if the

information will be relied on in determining sentence.”) (emphasis

added). Derouen was sentenced at the bottom of the applicable

guideline imprisonment range, the calculation of which he has not

contested. Moreover, a review of the sentencing hearing transcript

suggests the district court discredited the adverse letters.

AFFIRMED.