United States v. Belzel ( 2000 )

No. 99-50960
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50960
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL LEE BELZEL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-99-107-1-SS
--------------------\
April 11, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges
PER CURIAM:*
Michael Lee Belzel appeals his sentence following his
guilty-plea conviction for one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g) and
924(a).
Belzel argues that the district court erred by not granting
him a downward departure under U.S.S.G. § 5K2.11, p.s., because
the district court mistakenly believed that it did not have
authority to grant a departure under this provision. United
States v. Lugman, 130 F.3d 113, 115 (5th Cir. 1997). However, we
*
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this opinion should not be published and is not precedent except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. 99-50960
-2-
have no jurisdiction to review the district court’s decision to
deny Belzel’s request for a downward departure because the record
indicates that the district court determined that the facts in
Belzel’s case did not warrant a downward departure. See United
States v. Carmouche, 138 F.3d 1014, 1018 (5th Cir. 1998).
Belzel also argues that the district court erred by
enhancing his base offense level for possessing a sawed-off
shotgun when his indictment did not specifically charge him with
having such a weapon. This argument is meritless because the
type of firearm a defendant possesses is not an essential element
to be proved for conviction under § 922(g). See United States v.
Munoz, 150 F.3d 401, 417 (5th Cir. 1998), cert. denied, 525 U.S.
1112 (1999). Accordingly, Belzel’s sentence is AFFIRMED.