United States v. Mathieu ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
Nos. 95-30708, 95-30709, 95-30711
Summary Calendar
___________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS MATHIEU, JEROME
MATHIEU, and GRANT MATHIEU,
Defendants-Appellants.
________________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
(94-CR-96-R)
________________________________________________
May 29, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Thomas Mathieu (Thomas) appeals his guilty-plea conviction for
use of a communication facility in causing or facilitating the
commission of a felony. Jerome Mathieu (Jerome) and Grant Mathieu
(Grant) appeal their guilty-plea convictions for conspiracy to
distribute in excess of 50 grams of cocaine base.
Thomas and Grant have not shown that the district court erred
in finding that each of them did not provide full and truthful
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
cooperation as called for by their respective plea agreements, and
that the Government did not breach the agreements, which in any
event provided that the government had sole discretion whether to
file a motion for downward departure. Cf. United States v.
Garcia-Bonilla, 11 F.3d 45, 46-47 (5th Cir. 1993).
Thomas has not shown that the district court erred by
attributing the 1.5 kilograms of cocaine to him for sentencing
purposes. See U.S.S.G. §§ 1B1.3, comment. (n.1), 2D1.1(c)(1) &
comment. (n.12), and 2D1.6; United States v. Evbuomwan, 992 F.2d
70, 72-74 (5th Cir. 1993). Moreover, had there been an
overestimation of as much as 1.25 kilograms as to quantity it would
not have affected Thomas’s guideline range, as that was capped by
the 4 year statutory maximum. Thomas has not shown that the
district court erred in denying an offense-level adjustment for
acceptance of responsibility. See United States v. Watson, 988
F.2d 544, 551 (5th Cir. 1993), cert. denied, 114 S.Ct. 698 (1994);
United States v. Paden, 908 F.2d 1229, 1237 (5th Cir. 1990), cert.
denied, 498 U.S. 1039 (1991). Nor would such an adjustment have
changed the guideline range, in view of the statutory maximum.
Thomas has not shown that the district court failed in any way to
comply with Fed. R. Crim. P. 11. Moreover, if there was any
failure to fully and perfectly comply, any such minor failure would
be clearly harmless here. See United States v. Johnson, 1 F.3d
296, 298 (5th Cir. 1993)(en banc).
Jerome has not shown that the district court erred either in
finding he did not provide full and truthful cooperation as called
2
for by his plea agreement (which in any event provided the
government had sole discretion whether to move for downward
departure) or in not allowing him to withdraw his guilty plea. See
United States v. Bounds, 943 F.2d 541, 543 (5th Cir. 1991).
Jerome and Grant have not shown that the district court erred
by refusing to continue the sentencing until the relevant
sentencing guidelines are revised. See Pub. L. No. 104-38, 109
Stat. 334, cited in United States v. Roberson, No. 95-2711, 1996 WL
47448 at *1 (7th Cir. Feb. 2, 1996)(unpublished); United States v.
Watson, 953 F.2d 895, 897-98 (5th Cir.), cert. denied, 504 U.S. 928(1992).
We AFFIRM as to each appellant.
AFFIRMED
3