United States v. Smith

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40722 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERBERT LEE SMITH, III,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. G-95-CR-11-1 - - - - - - - - - - March 28, 1997 Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Herbert Lee Smith, III, (Smith) appeals his sentence for

possession with the intent to distribute cocaine base. He argues

that the district court erred: by denying him a downward

departure, by enhancing his offense level for possession of

dangerous weapons, and by not exercising its discretion to waive

the interest on the fine imposed. Although a violation of law

occurs if the district court refuses to depart under the mistaken

assumption that it does not have the authority to do so, United

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 96-40722 - 2 -

States v. Burleson, 22 F.3d 93, 95 (5th Cir.), cert. denied, 115

S. Ct. 283 (1994), there is no indication in this case that the

district court believed it lacked the authority to depart from

the guidelines.

Because it was not clearly improbable that the weapons were

connected to Smith's offense, the district court did not commit

clear error by applying the challenged enhancement. United

States v. Castillo, 77 F.3d 1480, 1498 (5th Cir.), cert. denied,

117 S. Ct. 180, 236, 502 (1996). There is no plain error

concerning the district court's failure to exercise its

discretion to waive the fine or the court's mistaken belief that

it lacked the authority to do so. United States v. Krout, 66

F.3d 1420, 1434 (5th Cir. 1995), cert. denied, 116 S. Ct. 963

(1996); 18 U.S.C. § 3612 (f)(3)(A), (h) (West Supp. 1996).

AFFIRMED.