United States v. Hauze

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2002
• Docket: 01-20359
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20359 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BERISFORD ALEXANDER HAUZE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-700-ALL -------------------- April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Berisford Alexander Hauze pleaded guilty to conspiracy to

possess with intent to distribute more than 100 grams of heroin

in connection with his arrest for smuggling heroin into the

United States in his digestive tract. Hauze appeals his sentence

arguing that the district court was clearly erroneous by

including as relevant conduct to his offense an estimate

of the amount of heroin he smuggled into the United States on a

prior occasion. Hauze does not argue that the prior smuggling

activity was not relevant conduct to the offense. Hauze

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20359 -2-

acknowledges his confession regarding swallowing 52 pellets of

heroin for the smuggling trip. Hauze does not argue that the

assumption that those pellets were substantially similar to the

pellets seized from him in August 2000 was clearly erroneous.

United States v. Torres, 114 F.3d 520, 527 (5th Cir. 1997).

Contrary to Hauze’s argument, the district court’s determination

of the quantity of drugs is supported by a preponderance of the

evidence. United States v. Gaytan, 74 F.3d 545, 558 (5th Cir.

1996).

With respect to Hauze’s assertion that the district court

erred by denying his motion for a downward departure, we do not

have jurisdiction to review the matter because the district

court's refusal to depart downward was based on its determination

that departure was not warranted on the facts of the case.

United States v. Reyes-Nava, 169 F.3d 278, 280 (5th Cir. 1999);

United States v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997).

AFFIRMED.