UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-11494
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL DEWAYNE WILSON,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:98-CR-10-1-A )
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September 28, 1999
Before SMITH, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Michael Dewayne Wilson appeals his conviction and sentence for
possession with intent to distribute cocaine base, in violation of
21 U.S.C. § 841(a)(1).
First, he claims that the court abused its discretion by
admitting into evidence, over his objection, the cocaine base
seized from his home. Because the Government made a prima facie
showing of authenticity, the evidence was properly admitted,
leaving the jury to determine whether the cocaine base was the same
*
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this opinion should not be published and is not precedent except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.
as that seized from Wilson’s residence. See United States v.
Sparks, 2 F.3d 574, 582 (5th Cir. 1993).
Next, Wilson maintains that the court erred in overruling his
objection to certain of the Government’s comments during closing.
However, the Government was responding properly to defense
counsel’s interpretation of the evidence. See United States v.
Parker, 877 F.2d 327, 332 (5th Cir. 1989); United States v. Morris,
568 F.2d 396, 401 (5th Cir. 1978).
Finally, Wilson asserts that the court abused its discretion
in denying his downward departure motion, claiming that the
guidelines do not adequately account for his harsh upbringing. He
also contends that he is entitled to the departure because the
guideline range for cocaine base is unconstitutional when compared
to that for cocaine powder. The district considered the merits of
Wilson’s motion and denied it. Therefore, we lack jurisdiction to
review that denial. E.g., United States v. Palmer, 122 F.3d 215,
222 (5th Cir. 1997). As for the constitutionality of the
guidelines’ treatment of crack and powder cocaine, as Wilson
concedes, it has been consistently upheld. E.g., United States v.
Buchanan, 70 F.3d 818, 828-29 nn.9-10 (5th Cir. 1995).
AFFIRMED
2
United States v. Wilson
Combined Opinion