United States v. Jackson

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 22, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-10923 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT EUGENE JACKSON, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CR-347-1-P --------------------

Before JOLLY, JONES and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Robert Eugene Jackson, Jr., appeals from his resentencing

following his guilty-plea conviction for using a facility of

interstate commerce to entice a minor to engage in illegal sexual

activity, in violation of 18 U.S.C. § 2422(b). He argues that he

was denied his right of allocution at his resentencing hearing.

We review this issue de novo. See United States v. Myers, 150

F.3d 459, 461 (5th Cir. 1998). After examination of the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10923 -2-

resentencing transcript, we hold that the district court did not

reversibly err in providing Jackson with his right of allocution.

See United States v. Delgado, 256 F.3d 264, 279 (5th Cir. 2001);

Gordon v. United States, 438 F.2d 858, 880-81 (5th Cir. 1971).

Jackson also challenges the extent of the upward departure

imposed by the district court as excessive. He concedes the

validity of the factors upon which the upward departure was

based. Because the upward departure was within the statutory

limit, the extent of the departure is reviewed only for a “gross

abuse of discretion.” United States v. Laury, 985 F.2d 1293,

1310-11 (5th Cir. 1993) (internal quotation marks and citations

omitted). Because the upward departure in this case is

comparable to others that this court has upheld, the district

court did not commit a gross abuse of discretion in determining

the extent of the departure. See United States v. Daughenbaugh,

49 F.3d 171, 174-75 (5th Cir. 1995); United States v. Ashburn, 38

F.3d 803, 809-10 (5th Cir. 1994)(en banc). Moreover, the instant

departure was not sufficiently great that the district court was

required to provide a detailed explanation of why lesser

departure levels were inadequate. See Ashburn, 38 F.3d at 809.

Accordingly, the district court’s judgment of conviction is

AFFIRMED.