United States v. Starnes ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40346
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS RAY STARNES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:01-CR-10-2
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Dennis Ray Starnes appeals his sentence after pleading
guilty to possession with intent to distribute marijuana.
Starnes argues that the district court erred in failing to grant
a downward departure on the basis of his cooperation with the
Government. Starnes acknowledges this court’s holding in United
States v. Solis, 169 F.3d 224, 227 (5th Cir. 1999) that a
district court has no authority to depart for substantial
assistance under U.S.S.G. § 5K2.0 if the Government does not file
*
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that this opinion should not be published and is not precedent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. 02-40346
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a U.S.S.G. § 5K1.1 motion. He attempts to distinguish his case
by arguing that the Government had bargained away its discretion
not to file a U.S.S.G. § 5K1.1 motion. He contends that the
Government reneged on its assurances to him that a U.S.S.G.
§ 5K1.1 motion would be filed.
The Government retained its discretion to decide whether to
file a U.S.S.G. § 5K1.1 motion in the plea agreement. Starnes
does not allege that Tonda Curry’s communications to Starnes’
lawyer that the committee had approved the filing of the U.S.S.G.
§ 5K1.1 motion occurred during plea negotiations or were an
inducement to his plea. The Government in this case clearly and
unequivocally retained complete discretion to file or not to file
a U.S.S.G. § 5K1.1 motion in the plea agreement. The Government
exercised its discretion not to file the motion, and the district
court had no power to grant Starnes’ motion.
Starnes argues that the district court erred in adding three
points to his offense level for his role in the offense. All
that was required to be shown in order for Starnes to be a
manager or supervisor was that he managed or supervised one or
more other participants. U.S.S.G. § 3B1.1, comment. (n.2).
Starnes provided travel money, transportation, and instructions
to John Charles Baggett, a courier participating in the
conspiracy. Starnes managed or supervised Baggett, directing
where and to whom Baggett should deliver the marijuana on three
separate occasions. The district court did not clearly err in
No. 02-40346
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finding that Starnes played a managerial or supervisory role.
U.S.S.G. § 3B1.1(b); United States v. Puig-Infante, 19 F.3d 929,
944 (5th Cir. 1994).
AFFIRMED.