IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41199
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO VALDEZ-GUERRERO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(L-00-CR-511-1)
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June 4, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Antonio Valdez-Guerrero was sentenced
following his conviction on his plea of guilty to possession with
intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(B). He appeals the district court’s refusal to
depart downward from the Sentencing Guidelines for his alleged
aberrant behavior. We dismiss for lack of jurisdiction.
Valdez argues that we should remand for resentencing in light
of an amendment to the United States Sentencing Guidelines
(U.S.S.G.) that added § 5K2.20 effective one month after Valdez was
*
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that this opinion should not be published and is not precedent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.
sentenced. Under both the version of the Guidelines that was in
effect at the time Valdez was sentenced and the version that became
effective afterwards and included § 5K2.20, Valdez’s conduct was
not aberrant behavior. Regarding the pre-amendment version, we
have held that aberrant behavior is generally a spontaneous and
seemingly thoughtless act, not one resulting from substantial
planning. See United States v. Williams, 974 F.2d 25, 26-27 (5th
Cir. 1992). Here, the district court found that Valdez had ample
time to consider his actions over the course of approximately three
and one-half days between the time he was approached regarding the
crime and the time he was arrested. The court also found that his
actions resulted from substantial planning. The same finding would
apply to the amended version of the Guidelines: Valdez’s actions
do not constitute aberrant behavior as defined by § 5K2.20.
The record demonstrates that, under either the pre-amendment
or post-amendment versions of the Guidelines, Valdez’s actions were
committed with significant planning and were not spontaneous or of
limited duration. Thus, a downward departure for aberrant behavior
would not appear to be warranted. As the court did not
misapprehend its authority under either version of the Guidelines,
we lack jurisdiction to hear this appeal. See United States v.
Reyes-Nava, 169 F.3d 278, 280 (5th Cir. 1999). As such, Valdez’s
appeal is
DISMISSED.
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