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United States v. Renger ( 2000 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20923
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVERETT RENGER, JR.,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
(H-98-CR-335-1)
- - - - - - - - - -
July 18, 2000
Before POLITZ, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Everett Renger, Jr., appeals from his jury
conviction and sentence for willful failure to pay federal income
tax in violation of
    26 U.S.C. § 7203
    .   Renger argues that the trial
court abused its discretion in refusing to instruct the jury that,
to find that he willfully failed to pay income taxes, it must find
that he acted with evil motive or bad purpose.   Renger insists that
the trial court erred in refusing to instruct the jury as to his
so-called theory of defense, and plainly erred in refusing to
*
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that this opinion should not be published and is not precedent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.
depart downward on the erroneous belief that it lacked discretion
to depart.
The trial court did not abuse its discretion in refusing to
adopt Renger’s instruction as to willfulness.   See Cheek v. United
States,
    498 U.S. 192
    , 201 (1991); United States v. Masat,
    948 F.2d 923
    , 932 (5th Cir. 1991); United States v. Tucker,
    686 F.2d 230
    (5th Cir. 1982).   Neither did the trial court err in refusing to
instruct the jury as to Renger’s theory of defense.   United States
v. Robinson,
    700 F.2d 205
    , 211 (5th Cir. 1983).        Because the
district court affirmatively established that its refusal to depart
was primarily based upon its determination that the facts of the
case did not warrant a downward departure, we lack jurisdiction to
review the district court’s refusal.   United States v. Brace,
    145 F.3d 247
    , 263 (5th Cir. 1998) (en banc), cert. denied,
    119 S. Ct. 426
     (1998).   Accordingly, the judgment of the district court is
AFFIRMED.
2