United States v. Robertson

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 5, 2007
Charles R. Fulbruge III
Clerk
No. 06-30763
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK ROBERTSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:05-CR-189
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Frederick Robertson appeals the 30-month sentence imposed by
the district court following his guilty-plea conviction on one
count of being a felon in possession of a firearm. He contends
that the district court denied the Government’s U.S.S.G. § 5K1.1
motion for a downward departure based on substantial assistance
because of his criminal history, which convinced the district
court that an upward departure would have been appropriate but
for his assistance to the Government. Robertson argues that the
*
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this opinion should not be published and is not precedent except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. 06-30763
-2-
district court improperly considered his arrest record in denying
the Government’s § 5K1.1 motion to downwardly depart.
“This court will affirm a refusal to depart from the
Guidelines unless the refusal was in violation of law.” United
States v. Miro, 29 F.3d 194, 199 (5th Cir. 1994). “A refusal to
depart violates law only if the court refuses to depart under the
mistaken assumption that it does not have the authority to do
so.” United States v. Akin, 62 F.3d 700, 701 (5th Cir. 1995).
This court lacks jurisdiction to review a refusal to depart
downwardly except “where the defendant points to something in the
record indicating that the district court held an erroneous
belief that it lacked the authority to depart.” United States v.
Hernandez, 457 F.3d 416, 424 (5th Cir. 2006).
We affirm the district court’s judgment because Robertson
has failed to point to anything in the record to indicate that
the district court was under the erroneous belief that it lacked
the authority to downwardly depart based on his substantial
assistance. See Hernandez, 457 F.3d at 424; Akin, 62 F.3d at
701. Moreover, our review of the sentencing transcript convinces
us that the district court relied on permissible factors, rather
than on Robertson’s arrest record, in reaching its determination
that an upward departure would have been justified. See U.S.S.G.
§ 4A1.3; United States v. Alford, 142 F.3d 825, 831 (5th Cir.
1998).
AFFIRMED.