United States v. Wilson

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 98-11494 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

MICHAEL DEWAYNE WILSON,

Defendant-Appellant.

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Appeal from the United States District Court for the Northern District of Texas (4:98-CR-10-1-A ) _________________________________________________________________

September 28, 1999

Before SMITH, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Michael Dewayne Wilson appeals his conviction and sentence for

possession with intent to distribute cocaine base, in violation of

21 U.S.C. § 841(a)(1).

First, he claims that the court abused its discretion by

admitting into evidence, over his objection, the cocaine base

seized from his home. Because the Government made a prima facie

showing of authenticity, the evidence was properly admitted,

leaving the jury to determine whether the cocaine base was the same

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. as that seized from Wilson’s residence. See United States v.

Sparks, 2 F.3d 574, 582 (5th Cir. 1993).

Next, Wilson maintains that the court erred in overruling his

objection to certain of the Government’s comments during closing.

However, the Government was responding properly to defense

counsel’s interpretation of the evidence. See United States v.

Parker, 877 F.2d 327, 332 (5th Cir. 1989); United States v. Morris,

568 F.2d 396, 401 (5th Cir. 1978).

Finally, Wilson asserts that the court abused its discretion

in denying his downward departure motion, claiming that the

guidelines do not adequately account for his harsh upbringing. He

also contends that he is entitled to the departure because the

guideline range for cocaine base is unconstitutional when compared

to that for cocaine powder. The district considered the merits of

Wilson’s motion and denied it. Therefore, we lack jurisdiction to

review that denial. E.g., United States v. Palmer, 122 F.3d 215,

222 (5th Cir. 1997). As for the constitutionality of the

guidelines’ treatment of crack and powder cocaine, as Wilson

concedes, it has been consistently upheld. E.g., United States v.

Buchanan, 70 F.3d 818, 828-29 nn.9-10 (5th Cir. 1995).

AFFIRMED