United States v. Marquez

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 1, 1999
• Docket: 98-20520
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20520 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE NELSON MARQUEZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CR-58-8 - - - - - - - - - - October 1, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Nelson Marquez appeals his guilty plea convictions for

conspiracy to possess with intent to distribute marijuana and

possession with intent to distribute marijuana. Marquez argues

that the district court abused its discretion in denying the motion

to withdraw his guilty plea, clearly erred in finding that Marquez

was a manager or supervisor, clearly erred in determining the

amount of drugs attributable to Marquez, and erred in refusing to

depart downward on the ground that the criminal history computation

overstated his criminal history.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-20520 -2-

Our review of the record and arguments and authorities

convinces us that no reversible error was committed. Even if

Marquez did not abandon his motion to withdraw his guilty plea, his

subsequent statements affirming his guilt and his understanding of

the seriousness of his offenses demonstrate that the district

court’s denial of the motion was not an abuse of discretion.

United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997). The

district court’s determination that Marquez was a manager or

supervisor over five or more participants is not clearly erroneous

in light of the information contained in the presentence report

(PSR), which was supported by sufficient indicia of reliability.

United States v. Parker, 133 F.3d 322, 329 (5th Cir.), cert.

denied, 118 S. Ct. 1851 (1998). By adopting the PSR, the district

court held Marquez accountable only for the amount of marijuana

attributable to Marquez that was both reasonably foreseeable and

was within the scope of the criminal activity as agreed by Marquez.

United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994).

Finally, as there is nothing in the record to suggest that the

district court erroneously believed that it was without authority

to depart, we lack jurisdiction to review the district court’s

determination that the departure was not warranted on the facts of

the case. United States v. Carmouche, 138 F.3d 1014, 1018 (5th

Cir. 1998).

AFFIRMED.