United States v. Wingate

*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this opinion should not be published and is not precedent except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
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No. 99-41225
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALICIA WINGATE,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(6:99-CR-2-2)
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May 3, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Alicia Wingate appeals her sentence based on her guilty plea
conviction for misprision of a felony, claiming the district court
concluded erroneously it did not possess discretion under the
Sentencing Guidelines to depart downward for extraordinary family
circumstances.
Our court has jurisdiction to review a decision not to depart
downward only if it is based on the district court’s erroneous
belief that it lacked the authority to depart. E.g., United States
v. Yanez-Huerta, No. 99-50363, ___ F.3d ___, 2000 WL 300561, at *2
(5th Cir. 23 March 2000).

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The district court denied Wingate’s motion to depart because
“there [were] no factors present in [her] motion which have not
sufficiently been considered by the ... Guidelines, which would
warrant [downward] a departure....” (Emphasis added.) Because the
refusal to depart downward was not based on an erroneous belief
that the court lacked authority to depart, we are without
jurisdiction to review the decision.
DISMISSED

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