United States v. Nunez ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30257
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR NUNEZ
Defendant-Appellant.
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Consolidated with
No. 99-30013
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMITCHELL DAVIDSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CR-50042-2
USDC No. 97-CR-50042-6
September 22, 1999
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Hector Nunez and Armitichell Davidson appeal the sentences
imposed (each received a substantial downward departure to the
mandatory minimum) following their guilty plea convictions for
conspiracy to distribute cocaine base and cocaine, in violation of
21 U.S.C. § 846. They maintain that the district court erred by
refusing to depart downward, pursuant to U.S.S.G. § 5K1.1, below
the 120 months mandatory minimum sentence.2
Nunez also contends that the Government waived the contention
that the district court erred initially departing downward to a
prison term of only 30 months. The Government timely filed, and
the district court timely acted upon, a FED. R. CRIM. P. 35(c) motion
to correct that initial sentence. See United States v. Bridges,
116 F.3d 1110, 1112 (5th Cir. 1997); United States v. Gonzalez, 163
F.3d 255, 263-64 (5th Cir. 1998).
For both Nunez and Davidson, the district court determined
properly that it was not authorized to depart below the mandatory
minimum because the Government had not requested such a departure
either in the defendants’ plea agreements or in their § 5K1.1
1
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this opinion should not be published and is not precedent except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.
2
The Government’s motion to strike statements of fact in
Davidson’s reply brief that lack record support, together with
argument based on such statements, is GRANTED; its motions for oral
argument are DENIED.
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motions. Melendez v. United States, 518 U.S. 120, 125-26, 129-30
(1996). Because the district court did not violate the law in
imposing the sentences, the extent of the downward departures may
not be challenged on appeal. See United States v. Alvarez, 51 F.3d
36, 39 (5th Cir. 1995). (In any event, the contentions regarding
more lenient sentences received by codefendants are meritless. See
United States v. McKinney, 53 F.3d 664, 678 (5th Cir.) cert.
denied, 516 U.S. 901, 903, 970 (1995).)
The sentences of Nunez and Davidson are
AFFIRMED.
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