United States v. Palmer

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 12, 1998
• Docket: 97-50206
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-50206 (Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY LEON PALMER,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas (USDC No. MO-96-CR-86) - - - - - - - - - - January 6, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Gregory Leon Palmer appeals his conviction and sentence for

possession with intent to distribute cocaine base (“crack”) in

violation of 21 U.S.C. § 841(a)(1). Palmer argues that the

district court committed reversible error by failing to instruct

the jury on the defense of entrapment as requested. Palmer failed

to make a prima facie showing that “the government’s conduct

created a substantial risk that an offense would be committed by a

person other than one ready to commit it,” and thus was not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. entitled to an entrapment instruction. See United States v.

Bradfield, 113 F.3d 515, 520-21 (5th Cir. 1997).

Palmer next argues that district court erred by failing to

depart downwardly from the sentencing guidelines for sentencing

entrapment. We lack jurisdiction to review a defendant's challenge

to his sentence for mere dissatisfaction with the court’s refusal

to grant a downward departure. United States v. Palmer, 122 F.2d

215, 222 (5th Cir. 1997); United States v. DiMarco, 46 F.3d 476,

477 (5th Cir. 1995).

Palmer also argues that the district court clearly erred in

finding that he indirectly threatened or intimidated witnesses and,

as a result, increasing his base offense level for obstruction of

justice. The government demonstrated by a preponderance of the

evidence that Palmer indirectly threatened and intimidated witness

Sarah Baldwin. Despite Palmer’s assertions to the contrary, the

record reflects that Baldwin identified who made the threat,

disclosed the substance of the threat, and directly linked Palmer

to the threat. As the district court’s finding was not clearly

erroneous, that court did not err by applying the obstruction of

justice increase. See U.S.S.G. § 3C1.1, comment. (n.3(a)); United

States v. Graves, 5 F.3d 1546, 1555 (5th Cir. 1993).

AFFIRMED.