UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-20836
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KURT STEVEN WITTE,
Defendant-Appellant.
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Appeal from the United States District Court
For the Southern District of Texas
(H-92-CR-207-1)
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August 9, 1996
Before JONES, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant Kurt Steven Witte argues that his sentence should be
reversed because he was not allowed to exercise his right of
allocution at sentencing. Defense counsel did not raise this issue
before the district court. Thus, we review this issue only for
plain error. Based on our review of the record, we hold that the
district court did not commit plain error with regard to Witte's
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
right of allocution at sentencing. See generally United States v.
Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993);
United States v. Calverley, 37 F.3d 160 (1994) (en banc).
Witte next argues that his sentence should be reversed because
the district court failed to recognize that he had the authority to
depart downwards from the applicable sentencing guidelines range.
See Witte v. United States, ___ U.S. ___, 115 S. Ct. 2199, 132 L.
Ed. 2d 351 (1995). Based on our review of the record, we find that
the district court did recognize that he had the authority to
depart, and exercised his discretion not to depart. Consequently,
we hold that the district court did not err by refusing to depart
downwards.
We AFFIRM.
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