United States v. Melgar

* 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that this opinion should not be published and is not precedent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. 01-40258
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERT MELGAR, JR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-00-CR-441-2
--------------------
December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Gilbert Melgar, Jr., appeals from his sentence for
possession with intent to distribute over 1,000 kilograms of
marijuana. Melgar contends that the district court failed to
consider his motion for downward departure pursuant to U.S.S.G.
§ 5K2.12 (Coercion and Duress).
At sentencing, the district court questioned a DEA agent
about Melgar’s allegation of coercion but indicated it was
unconvinced that coercion or duress had been shown. This inquiry
demonstrates that the motion was considered and that the court

-- 1 of 2 --

No. 01-40258
-2-
did not mistakenly believe that it could not grant a motion for
downward departure on that basis. The district court simply
concluded that a departure on this basis was not warranted, and
therefore we lack jurisdiction to consider the appeal. See
United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999).
APPEAL DISMISSED.

-- 2 of 2 --