United States v. Thompson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11152 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JERRY LEE THOMPSON, also known as “Chief”,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 6:01-CR-10-ALL-C -------------------- August 21, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

Jerry Lee Thompson appeals his conviction for possession

with intent to distribute less than five grams of crack cocaine

within 1,000 feet of a playground and aiding and abetting. He

argues that the court should presume that the district court was

not aware that it had the authority to depart downward from the

guideline sentencing range because the district court did not

directly address the factors that Thompson asserts warrant a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-11152 -2-

departure in his case. He argues that his lack of sophistication

and education, poor background, age, and poor health are factors

that warranted the departure.

Although the district court did not specifically state the

reasons why it was denying Thompson’s motion for departure, there

is nothing in the record to suggest that the district court

mistakenly believed that it could not depart downward. The

district court’s statements at sentencing and in its written

judgment and the sentence imposed in the middle of the guideline

sentencing range reflect its determination that Thompson’s

extensive past criminal history warranted the application of the

Career Offender provisions and the imposition of the increased

sentence. The record reflects that the district court determined

that a departure was not warranted under the facts of the case.

See United States v. Brace, 145 F.3d 247, 263 (5th Cir. 1998)(en

banc).

Because there is no indication in the record that the

district court believed that it lacked the authority to depart

downward, the appeal is DISMISSED for lack of jurisdiction to

review the district court’s denial of Thompson’s departure

request. See United States v. DiMarco, 46 F.3d 476, 477-78 (5th

Cir. 1995).

APPEAL DISMISSED.