IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-51058
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRYL DEWAYNE FRAZIER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-96-CR-109-1
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October 22, 1998
Before POLITZ, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Darryl Dewayne Frazier was convicted for possession with
intent to distribute cocaine base and aiding and abetting and has
appealed his sentence. Frazier contends that the district court
improperly sentenced him as a “career offender” under U.S.S.G.
§ 4B1.1 on the basis of the instant conviction for aiding and
abetting. Frazier’s argument is foreclosed by the court’s
opinion in United States v. Lightbourn, 115 F.3d 291, 293 (5th
Cir. 1997).
*
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this opinion should not be published and is not precedent except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.
No. 97-51058
-2-
Frazier contends that his criminal history category of VI
unfairly exaggerates the seriousness of his prior criminal
conduct and that the district court abused its discretion in
refusing to depart downward. Departures from the sentencing
guidelines are discretionary, and a district court’s decision not
to depart downward from the applicable sentencing range is not
reviewable unless the district court believed it lacked authority
to depart or the failure to depart violated the law. See United
States v. Burleson, 22 F.3d 93, 94-95 (5th Cir. 1994). Frazier
does not contend that the failure to depart violated the law and
the record does not reflect that the district court believed that
it lacked authority to depart downward.
AFFIRMED.