IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40722
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERBERT LEE SMITH, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-95-CR-11-1
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March 28, 1997
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Herbert Lee Smith, III, (Smith) appeals his sentence for
possession with the intent to distribute cocaine base. He argues
that the district court erred: by denying him a downward
departure, by enhancing his offense level for possession of
dangerous weapons, and by not exercising its discretion to waive
the interest on the fine imposed. Although a violation of law
occurs if the district court refuses to depart under the mistaken
assumption that it does not have the authority to do so, United
*
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that this opinion should not be published and is not precedent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.
No. 96-40722
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States v. Burleson, 22 F.3d 93, 95 (5th Cir.), cert. denied, 115
S. Ct. 283 (1994), there is no indication in this case that the
district court believed it lacked the authority to depart from
the guidelines.
Because it was not clearly improbable that the weapons were
connected to Smith's offense, the district court did not commit
clear error by applying the challenged enhancement. United
States v. Castillo, 77 F.3d 1480, 1498 (5th Cir.), cert. denied,
117 S. Ct. 180, 236, 502 (1996). There is no plain error
concerning the district court's failure to exercise its
discretion to waive the fine or the court's mistaken belief that
it lacked the authority to do so. United States v. Krout, 66
F.3d 1420, 1434 (5th Cir. 1995), cert. denied, 116 S. Ct. 963
(1996); 18 U.S.C. § 3612 (f)(3)(A), (h) (West Supp. 1996).
AFFIRMED.