Opinion
No. 10-40090 Summary Calendar.
October 18, 2010.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Sarah Beth Landau, Assistant Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 2:09-CR-741-1.
Before WIENER, PRADO, and OWEN, Circuit Judges.
Octavias Laray Perry appeals the sentence imposed following his jury conviction for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). He argues that the district court incorrectly determined that it was precluded from departing downward under U.S.S.G. § 5K2.12 based on an incomplete duress defense because the jury had rejected his duress defense at trial.
Perry has not shown that the district court incorrectly determined that it lacked the authority to depart downward under § 5K2.12. The record reflects that the district court considered defense counsel's arguments at sentencing for a downward departure, the Presentence Report (PSR), the 18 U.S.C. § 3553(a) factors, and Perry's allocution. Although the district court noted that the jury had rejected the duress defense and Perry's version of the facts at trial, the district court's comments do not indicate that it was under the mistaken belief that it lacked the authority to depart downward under § 5K2.12 due to the jury's rejection of the duress defense. The district court found that, even assuming that the facts were as Perry presented them, a downward departure based on duress under § 5K2.12 was not warranted because Perry had other options on the night of the offense. After considering Perry's arguments, the PSR, and the § 3553(a) factors, the district court implicitly denied Perry's request for a downward departure and expressly determined that a forty-one month sentence within the advisory guidelines range was appropriate. Thus, the record does not indicate that the district court held the erroneous belief that it lacked the authority to depart downward. See United States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir. 1999). Therefore, this court; lacks the jurisdiction to review the district court's denial of Perry's request for a downward departure. See United States v. Lucas, 516 F.3d 316, 350 (5th Cir. 2008).
APPEAL DISMISSED.