United States v. Guzman-Morales

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40013 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CARLOS GUZMAN-MORALES,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-95-CR-171 - - - - - - - - - - October 23, 1996 Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Juan Carlos Guzman-Morales (“Guzman”) appeals his sentence

for simple possession of marijuana. Guzman contends that he did

not receive adequate notice that the magistrate judge might

consider an upward departure from his guideline sentencing range;

that the magistrate judge should have notified him of the extent

of the departure under consideration; and that the magistrate

judge failed to consider departure to criminal history categories

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 96-40013 -2-

that would have resulted in a departure to a sentence of less

than 12 months.

The presentence report (PSR) provided adequate notice that

the magistrate judge might consider an upward departure. See

United States v. Doucette, 979 F.2d 1042, 1047 n.4 (5th Cir.

1992). The magistrate judge’s reasons for departure, Guzman’s

criminal past, and his use of marijuana while under pretrial

supervision, indicated sufficient reasons for the departure and

for not selecting a sentence reflecting intermediate criminal

history categories. The departure to 12 months’ imprisonment was

reasonable. See United States v. McKenzie, 991 F.2d 203, 204

(5th Cir. 1993); United States v. Lambert, 984 F.2d 658, 662-63

(5th Cir. 1993)(en banc).

AFFIRMED.