United States v. Southerland

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2003

Charles R. Fulbruge III Clerk No. 02-41096 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIA DELOURDES SOUTHERLAND,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-591-2 --------------------

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Maria De Lourdes Southerland (Southerland) appeals the 31-

month sentence she received following her guilty-plea conviction

for possession of more than 500 grams of cocaine with intent to

distribute. She asserts that the district court erred in

assessing a two-level enhancement under U.S.S.G. § 3B1.1(c) based

upon her role in the offense. She has not established that the

district court clearly erred in imposing the enhancement. See

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41096 -2-

United States v. Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998).

This portion of the judgment is AFFIRMED.

Southerland also contends that the district court erred in

denying her motion for a downward departure based upon aberrant

behavior. Because Southerland was convicted of a “serious drug

trafficking offense,” she was not entitled to such a departure.

See U.S.S.G. § 5K2.20 & comment. (n.1). The district court

therefore was not mistaken in its belief that it lacked authority

to depart. See United States v. DiMarco, 46 F.3d 476, 477 (5th

Cir. 1995). Because this court lacks jurisdiction to review the

district court’s refusal to depart downward, this portion of the

appeal is DISMISSED.

AFFIRMED IN PART; DISMISSED IN PART.