United States v. Page ( 2003 )

F I L E D
United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS March 27, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-40986
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID EDWARD PAGE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-802-2
Before GARWOOD, JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
David Edward Page pleaded guilty to one charge of possession
with intent to distribute 430.1 kilograms of marihuana in violation
of 21 U.S.C. § 841, and the district court sentenced him to forty
months in prison and a three-year term of supervised release. Page
argues on appeal that the district court committed clear error in
denying him a decrease in his base offense level in accordance with
U.S.S.G. § 3B1.2 because his role in the offense was limited 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opinion should not be published and is not precedent except under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.
that of a drug courier. Page has not shown that the district court
erred in refusing to give him this adjustment. See United States
v. Deavours, 219 F.3d 400, 404 (5th Cir. 2000); United States v.
Gallegos, 868 F.2d 711, 713 (5th Cir. 1989).1
Page further contends that 21 U.S.C. §§ 841(a), (b), are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000). As Page contends, his argument is foreclosed by this
court’s decision in United States v. Slaughter, 238 F.3d 580, 582
(5th Cir. 2000). Page has shown no error in the district court’s
1
We note in passing that Page’s base offense level was 28,
calculated on the some 458 kilograms of marihuana in the vehicle he
was driving (and was the sole occupant of) from the Rio Grande
Valley to Chicago; Page was granted a three level reduction, to
level 25, for acceptance of responsibility. With his criminal
history category IV, this produced a guideline imprisonment range
of 84 to 105 months. Given the quantity of marihuana, Page was
subject to a statutory minimum sentence of five years. 21 U.S.C.
§ 841(b)(1)(B)(vii). However, the Government moved for downward
departure under guidelines section 5K1.1 on account of the
substantial assistance Page had provided, thus authorizing the
court to impose a sentence below the statutory minimum. The
Government indicated it was requesting a three level downward
departure, to offense level 22, which would have produced a
guidelines imprisonment range of 63 to 78 months. The court
granted the Government’s motion to depart, but departed
considerably farther than the Government had requested, imposing a
40 month sentence (a seven level departure, to level 18, would have
produced a guidelines imprisonment range of 41 to 51 months). Had
the court granted Page a four level reduction for having a minimal
role in the offense, which would have reduced his offense level to
21, his guideline imprisonment range without any departure would
have been 57 to 71 months; and, if, in addition to that, the court
had simply granted the three level reduction requested in the
Government’s 5K1.1 motion (instead of granting a greater departure)
the offense level would likewise have been 18 with a guideline
imprisonment range of 41 to 51 months. The court’s actual sentence
of 40 months is within the guideline imprisonment range of 33 to 41
months for offense level 16.
2
judgment. Accordingly, that judgment is
AFFIRMED.
3