United States v. Gonzalez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40360 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DIONICIO GONZALEZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-95-CR-245-01 - - - - - - - - - - January 30, 1997 Before WISDOM, JOLLY and BENAVIDES, Circuit Judges.

PER CURIAM:*

Dionicio Gonzalez appeals his sentence for possession to

distribute marijuana. Gonzalez argues that the district court

plainly erred in calculating his criminal history and that the

court mistakenly believed that it lacked the authority to depart

downward. Gonzalez also contends that his attorney was

ineffective for failing to request to review the presentence

report with Gonzalez, failing to object that some prior

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-40360 - 2 -

convictions were “double-counted” for purposes of determining his

criminal history category, and failing to move for a downward

departure. We have reviewed the record and the briefs of the

parties and find no error, plain or otherwise, in the district

court’s determination of Gonzalez’s criminal history category.

See United States v. Box, 50 F.3d 345, 359 (5th Cir.), cert.

denied, 116 S. Ct. 309 (1995). The record does not suggest that

the district court believed that it lacked the authority to

depart downward. United States v. Burleson, 22 F.3d 93, 95 (5th

Cir.), cert. denied, 115 S. Ct. 283 (1994). Gonzalez’s

statements to the district court refute his claim that he was

denied an opportunity to review the presentence report.

Blackledge v. Allison, 431 U.S. 63, 74 (1977). Gonzalez has

failed to establish that counsel was ineffective for failing to

object to the calculation of his criminal history or move for a

downward departure. See Box, 50 F.3d at 359; Burleson, 22 F.3d

at 95; Strickland v. Washington, 466 U.S. at 687.

AFFIRMED.