United States v. Granger

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 10, 2002
• Docket: 01-41233
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41233 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

TERRY PETTY GRANGER

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-01-CR-187-1 -------------------- May 9, 2002

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Terry Petty Granger appeals her sentence following her

guilty-plea conviction for possession with the intent to

distribute more than 100 kilograms of marijuana. Granger

challenges the district court’s denial of the Government’s motion

for a U.S.S.G. § 5K1.1 downward departure based on Granger’s

substantial assistance to authorities.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41233 -2-

This court has jurisdiction to review a sentence only if it

was imposed in violation of law, was imposed as a result of an

incorrect application of the sentencing guidelines, was due to an

upward departure, or was imposed for an offense not covered by

the sentencing guidelines and is plainly unreasonable. United

States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995). Granger

contends that the district court judge acted in violation of law

(1) by failing to consider the five factors enumerated in

U.S.S.G. § 5K1.1(a) and to state his analysis on the record and

(2) by relying on his personal aversion to U.S.S.G. § 5K1.1

departures rather than on an assessment of Granger’s individual

case. Since Granger did not assert these arguments in the

district court, the plain-error standard of review applies. See

United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir.

2000), cert. denied, 531 U.S. 1097 (2001).

Granger has not shown that the district court committed

plain error and violated the law or misapplied the guidelines.

See id.; DiMarco, 46 F.3d at 477-78. The plain language of

U.S.S.G. § 5K1.1(a) states only that the district court’s reasons

for determining “the appropriate reduction” under the guideline

“may include” consideration of the five enumerated factors. And

the guideline’s commentary requires only that the district court

state its reasons “for reducing a sentence under this section.”

U.S.S.G. § 5K1.1, comment. (backg’d). Likewise, this court has

held that if the spread of the applicable guideline range is less No. 01-41233 -3-

than 24 months, as is the case here, the district court is not

statutorily required to state its reasons for imposing a sentence

at a particular point within that range. United States v.

Richardson, 925 F.2d 112, 117, n.13 (5th Cir. 1991).

Finally, while the district court is required to evaluate

the defendant’s case on an individual basis before denying a

U.S.S.G. § 5K1.1 motion for downward departure, the transcript of

Granger’s sentencing hearing demonstrates that the district court

did in fact consider Granger’s criminal history, her role in the

offense, and the nature, extent, and significance of her

assistance to authorities in this case. See U.S.S.G. § 5K1.1,

comment. (backg’d); United States v. Johnson, 33 F.3d 8, 9 (5th

Cir. 1994). Granger’s appeal is therefore dismissed for lack of

jurisdiction. See DiMarco, 46 F.3d at 478.

APPEAL DISMISSED.