United States v. Granger ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41233
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
TERRY PETTY GRANGER
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-01-CR-187-1
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May 9, 2002
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Terry Petty Granger appeals her sentence following her
guilty-plea conviction for possession with the intent to
distribute more than 100 kilograms of marijuana. Granger
challenges the district court’s denial of the Government’s motion
for a U.S.S.G. § 5K1.1 downward departure based on Granger’s
substantial assistance to authorities.
*
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this opinion should not be published and is not precedent except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. 01-41233
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This court has jurisdiction to review a sentence only if it
was imposed in violation of law, was imposed as a result of an
incorrect application of the sentencing guidelines, was due to an
upward departure, or was imposed for an offense not covered by
the sentencing guidelines and is plainly unreasonable. United
States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995). Granger
contends that the district court judge acted in violation of law
(1) by failing to consider the five factors enumerated in
U.S.S.G. § 5K1.1(a) and to state his analysis on the record and
(2) by relying on his personal aversion to U.S.S.G. § 5K1.1
departures rather than on an assessment of Granger’s individual
case. Since Granger did not assert these arguments in the
district court, the plain-error standard of review applies. See
United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir.
2000), cert. denied, 531 U.S. 1097 (2001).
Granger has not shown that the district court committed
plain error and violated the law or misapplied the guidelines.
See id.; DiMarco, 46 F.3d at 477-78. The plain language of
U.S.S.G. § 5K1.1(a) states only that the district court’s reasons
for determining “the appropriate reduction” under the guideline
“may include” consideration of the five enumerated factors. And
the guideline’s commentary requires only that the district court
state its reasons “for reducing a sentence under this section.”
U.S.S.G. § 5K1.1, comment. (backg’d). Likewise, this court has
held that if the spread of the applicable guideline range is less
No. 01-41233
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than 24 months, as is the case here, the district court is not
statutorily required to state its reasons for imposing a sentence
at a particular point within that range. United States v.
Richardson, 925 F.2d 112, 117, n.13 (5th Cir. 1991).
Finally, while the district court is required to evaluate
the defendant’s case on an individual basis before denying a
U.S.S.G. § 5K1.1 motion for downward departure, the transcript of
Granger’s sentencing hearing demonstrates that the district court
did in fact consider Granger’s criminal history, her role in the
offense, and the nature, extent, and significance of her
assistance to authorities in this case. See U.S.S.G. § 5K1.1,
comment. (backg’d); United States v. Johnson, 33 F.3d 8, 9 (5th
Cir. 1994). Granger’s appeal is therefore dismissed for lack of
jurisdiction. See DiMarco, 46 F.3d at 478.
APPEAL DISMISSED.