United States v. Duque ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20102
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PITER WILLIAM LONDOÑO DUQUE,
also known as Piter William
Londono, also known as Rafael
A. Jimenez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. CR-H-98-275
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December 14, 1999
Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Piter William Londoño Duque was convicted for importation of
heroin and possession with intent to distribute heroin and has
appealed his sentences. Londoño Duque contends that the district
court erred in refusing to adjust his offense level because of
his minor role in the offense. The district court’s
determination that a defendant did not play a minor or minimal
role in the offense is a fact finding which this court reviews
*
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that this opinion should not be published and is not precedent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. 99-20102
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for clear error. United States v. Brown, 54 F.3d 234, 240 (5th
Cir. 1995). Londoño Duque “bears the burden of proving his minor
role in the offense by a preponderance of the evidence.” Id.
Londoño Duque was carrying a substantial amount of heroin and was
sentenced on the basis of that amount only. See United States v.
Valencia-Gonzales, 172 F.3d 344, 346-47 (5th Cir. 1999), cert.
denied, (U.S. Oct. 4, 1999) (No. 99-5249). Londoño Duque
provided no evidence, apart from his own statement, showing that
he was substantially less culpable than other participants. See
United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1990).
The district court’s ruling was not clearly erroneous and is
AFFIRMED.
Londoño Duque contends that the district court erred in
refusing to depart downward from the guideline imprisonment
range, under U.S.S.G. § 5K2.12, p.s., because the offense was
committed under duress. The district court refused to depart
downward because it found Londoño Duque’s suggestion of coercion
implausible. “The district court did not refuse to depart in
violation of law or because of a mistaken application of the
guidelines, nor did it do so out of a mistaken belief that it
lacked the power to do so.” United States v. Morgan, 117 F.3d
849, 860-61 (5th Cir. 1997). Under these circumstances, this
court lacks jurisdiction to review the district court’s refusal
to depart downward. Id. at 861 (citing United States v. Leonard,
61 F.3d 1181, 1185 (5th Cir. 1995), and United States v. DiMarco,
46 F.3d 476, 478 (5th Cir. 1995)). This portion of the appeal is
DISMISSED. DiMarco, 46 F.3d at 478.
No. 99-20102
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AFFIRMED IN PART; DISMISSED IN PART.