United States v. Derouen

*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this opinion should not be published and is not precedent except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.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30146
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL P. DEROUEN,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(01-CR-60029-ALL)
_________________________________________________________________
August 29, 2002
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges:
PER CURIAM:*
Daniel P. Derouen appeals his sentence following his guilty-
plea conviction of possession of a videotape containing child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). AFFIRMED.
Derouen contends that the district court erred in denying his
motion for a downward departure from the applicable guideline
imprisonment range, based on his contention that his offense was
“aberrant behavior” under U.S.S.G. § 5K2.20. Because nothing in
the record indicates the district court held a mistaken belief

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about its discretion to depart, this claim is not reviewable on
appeal. See United States v. Wilson, 249 F.3d 366, 380 (5th Cir.
2001).
Derouen also maintains that the district court violated his
due process rights by declining to release to him ex parte letters
that contained “secret, unfavorable ... information”. At
sentencing, the district court stated that it had received some
letters that were “very favorable” to Derouen and others that were
“very unfavorable”.
No error could have occurred in this instance because the
record reflects that the district court did not rely on the adverse
letters in fashioning Derouen’s sentence. See United States v.
Lemons, 941 F.2d 309, 320 (5th Cir. 1991) (holding no error in
failure to disclose adverse letters and noting that the district
court did not rely on them); see FED. R. CRIM. P. 32(c)(3)(A) (“If
the court has received information excluded from the presentence
report under subdivision (b)(5) the court—in lieu of making that
information available—must summarize it in writing, if the
information will be relied on in determining sentence.”) (emphasis
added). Derouen was sentenced at the bottom of the applicable
guideline imprisonment range, the calculation of which he has not
contested. Moreover, a review of the sentencing hearing transcript
suggests the district court discredited the adverse letters.
AFFIRMED.

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