USA v. Octavias Perry

Filing

UNPUBLISHED OPINION FILED. [10-40090 Dismissed for Lack of Jurisdiction] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 11/08/2010 for Appellant Octavias Laray Perry [10-40090]

USA v. Octavias Perry

Doc. 0

Case: 10-40090

Document: 00511266467

Page: 1

Date Filed: 10/18/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40090 S u m m a r y Calendar October 18, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e , v. O C T A V I A S LARAY PERRY, D e fe n d a n t ­ A p p e lla n t .

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 2:09-CR-741-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* O c t a v ia s Laray Perry appeals the sentence imposed following his jury c o n v ic t io n 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 t h a t it was precluded from departing downward under U.S.S.G. § 5K2.12 based o n an incomplete duress defense because the jury had rejected his duress defense a t trial.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Dockets.Justia.com

Case: 10-40090

Document: 00511266467 Page: 2 No. 10-40090

Date Filed: 10/18/2010

P e r r y has not shown that the district court incorrectly determined that it la c k e d the authority to depart downward under § 5K2.12. The record reflects t h a t 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) fa c t o r s , and Perry's allocution. Although the district court noted that the jury h a d rejected the duress defense and Perry's version of the facts at trial, the d is t r ic t court's comments do not indicate that it was under the mistaken belief t h a t it lacked the authority to depart downward under § 5K2.12 due to the jury's r e je c t io n of the duress defense. The district court found that, even assuming t h a t the facts were as Perry presented them, a downward departure based on d u r e s s under § 5K2.12 was not warranted because Perry had other options on t h e 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 d o w n w a r d departure and expressly determined that a forty-one month sentence w it h in the advisory guidelines range was appropriate. Thus, the record does not in d ic a te that the district court held the erroneous belief that it lacked the a u t h o r it y to depart downward. See United States v. Valencia-Gonzales, 172 F.3d 3 4 4 , 346 (5th Cir. 1999). Therefore, this court lacks the jurisdiction to review t h e district court's denial of Perry's request for a downward departure. See U n ite d States v. Lucas, 516 F.3d 316, 350 (5th Cir. 2008). A P P E A L DISMISSED.

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