United States v. Scott

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-40429 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY D'ANDRE SCOTT,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:94-CR-31-1 - - - - - - - - - - February 8, 1996

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

This is a direct appeal of a jury conviction for possession of

crack cocaine with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1). The appellant argues that the district court erred in

denying his motion to suppress the cocaine seized from his vehicle

after a traffic stop. The district court did not err in holding

that the officers were justified in stopping Scott's vehicle

initially for a violation of Texas traffic law. United States v.

Kelley, 981 F.2d 1464, 1467 (5th Cir.), cert. denied, 113 S. Ct.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-40429 -2-

2427 (1993). The district court did not err in holding the

questioning did not exceed the scope of the initial traffic stop.

Id. at 1469-70. Based on the information obtained from the

officers initial questioning of Scott, including questions

regarding the validity of Scott's driver's license and Scott's

nervousness, the officers were justified in questioning Scott

further. See United States v. Crain, 33 F.3d 480, 485 (5th Cir.

1994). The district court did not clearly err in holding that

Scott voluntarily consented to the search of his vehicle. See

Kelley, 981 F.2d at 1470.

Scott contends that the district court abused its discretion

in refusing to give a jury instruction on duress. The district

court did not abuse its discretion in refusing to give the duress

jury instruction because there was no evidentiary basis for the

duress defense. See United States v. Tannehill, 49 F.3d 1049, 1057

(5th Cir.), cert. denied, 116 S. Ct. 167 (1995).

Scott contends that the sentencing court erred in refusing to

grant a downward departure based on duress and his diminished

capacity. Scott does not contend that the district court violated

the law or misapplied the Guidelines in refusing to grant a

downward departure, or that the district court was unaware that it

had the authority to grant a downward departure. This court lacks

jurisdiction to review a defendant's challenge to his sentence

based on mere dissatisfaction with the court's refusal to grant a

downward departure, unless the court's refusal was the result of a

violation of law or a misapplication of the Guidelines. United

States v. DiMarco, 46 F.3d 476, 477 (5th Cir. 1995). No. 95-40429 -3-

Scott contends that the district court erred in refusing to

reduce his offense level based on his minor role in the offense.

The district court did not abuse its discretion in holding that

Scott was not entitled to a reduction in his offense level for his

alleged minor role in the offense as Scott presented no evidence at

trial or at sentencing that others were involved in the offense or

that his role was merely to transport the drugs. We have

previously rejected the argument that a defendant acting as a

courier of 497 grams of cocaine was a minor participant because of

the "significant quantity" of cocaine the defendant possessed.

United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989).

Scott contends that the U.S. Sentencing Guidelines governing

crack cocaine are unconstitutionally vague and meaningless. We

have previously held that the disparate sentencing provisions for

crack cocaine and cocaine powder in the Guidelines do not violate

constitutional due process guarantees. United States v. Thomas,

932 F.2d 1085, 1090 (5th Cir. 1991), cert. denied, 502 U.S. 1038

(1992).

AFFIRMED.