United States v. Gomez-Guerrero

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40978
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO GOMEZ-GUERRERO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-215-ALL
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October 29, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Mario Gomez-Guerrero appeals the 84-month sentence imposed
by the district court following his conviction on a plea of
guilty to a charge of illegal reentry to the United States
following deportation. Gomez-Guerrero contends that he was
denied due process because the Government knew that he was in
state custody and did not indict him at the earliest possible
time. Gomez-Guerrero asserts that the district court erred by
denying him a downward departure based on his due process claim.

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No. 01-40978
-2-
Gomez-Guerrero cannot establish a due process violation
because he has not alleged that the pre-indictment delay was
intentionally undertaken by the Government to gain “some tactical
advantage . . . in the contemplated prosecution or for some other
impermissible, bad faith purpose.” United States v. Crouch, 84
F.3d 1497, 1514 (5th Cir. 1996) (en banc). Further, we may not
review the district court’s refusal to grant a downward departure
because the record does not indicate that the district court
believed that it lacked the authority under the Sentencing
Guidelines to downwardly depart. United States v. Wilson, 249
F.3d 366, 380 (5th Cir. 2001). Accordingly, the judgment of the
district court is AFFIRMED.

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