United States v. Mulinax

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2002
• Docket: 01-11116
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11116 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VINCENT MULINAX,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CR-45-2-A -------------------- April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Vincent Mulinax appeals his sentence following his guilty-

plea conviction for conspiracy to fraudulently use identities, in

violation of 18 U.S.C. §§ 371 and 1028. He argues that the

district court abused its discretion in imposing an upward

departure. Mulinax asserts that his case did not fall outside

the “heartland” of cases covered by the Sentencing Guidelines, so

that an upward departure was not warranted under U.S.S.G.

§ 5K2.0, p.s. He additionally maintains that the harm suffered

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-11116 -2-

by some of the victims was not serious enough to warrant an

upward departure.

The district court’s decision to depart from the Guidelines

is reviewed for abuse of discretion. Koon v. United States, 518

U.S. 81, 96-100 (1996). Contrary to Mulinax’s contention, the

Guidelines specifically encourage upward departures based on the

factors delineated by the district court at the sentencing

hearing. See id.; United States v. Wells, 101 F.3d 370, 373-74

(5th Cir. 1996)(recognizing that application notes to U.S.S.G.

§ 2F1.1 encourage upward departures based on non-monetary and

psychological harm). Furthermore, in light of our decision in

Wells, the district court could have reasonably concluded that

the hardships suffered by the victims in this case made their

harm unusual, taking this case out of the heartland of the

Guidelines and making the two-level upward departure appropriate.

See Wells, 101 F.3d at 374-75. Accordingly, we conclude that the

district court did not abuse its discretion in imposing an upward

departure.

To the extent that Mulinax seeks to appeal the denial of his

motion for downward departure, we lack jurisdiction to review it.

See United States v. Landerman, 167 F.3d 895, 899 (5th Cir.

1999).

AFFIRMED.