United States v. Duque

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 15, 1999
• Docket: 99-20102
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20102 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PITER WILLIAM LONDOÑO DUQUE, also known as Piter William Londono, also known as Rafael A. Jimenez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. CR-H-98-275 -------------------- December 14, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Piter William Londoño Duque was convicted for importation of

heroin and possession with intent to distribute heroin and has

appealed his sentences. Londoño Duque contends that the district

court erred in refusing to adjust his offense level because of

his minor role in the offense. The district court’s

determination that a defendant did not play a minor or minimal

role in the offense is a fact finding which this court reviews

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20102 -2-

for clear error. United States v. Brown, 54 F.3d 234, 240 (5th

Cir. 1995). Londoño Duque “bears the burden of proving his minor

role in the offense by a preponderance of the evidence.” Id.

Londoño Duque was carrying a substantial amount of heroin and was

sentenced on the basis of that amount only. See United States v.

Valencia-Gonzales, 172 F.3d 344, 346-47 (5th Cir. 1999), cert.

denied, (U.S. Oct. 4, 1999) (No. 99-5249). Londoño Duque

provided no evidence, apart from his own statement, showing that

he was substantially less culpable than other participants. See

United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1990).

The district court’s ruling was not clearly erroneous and is

AFFIRMED.

Londoño Duque contends that the district court erred in

refusing to depart downward from the guideline imprisonment

range, under U.S.S.G. § 5K2.12, p.s., because the offense was

committed under duress. The district court refused to depart

downward because it found Londoño Duque’s suggestion of coercion

implausible. “The district court did not refuse to depart in

violation of law or because of a mistaken application of the

guidelines, nor did it do so out of a mistaken belief that it

lacked the power to do so.” United States v. Morgan, 117 F.3d

849, 860-61 (5th Cir. 1997). Under these circumstances, this

court lacks jurisdiction to review the district court’s refusal

to depart downward. Id. at 861 (citing United States v. Leonard,

61 F.3d 1181, 1185 (5th Cir. 1995), and United States v. DiMarco,

46 F.3d 476, 478 (5th Cir. 1995)). This portion of the appeal is

DISMISSED. DiMarco, 46 F.3d at 478. No. 99-20102 -3-

AFFIRMED IN PART; DISMISSED IN PART.