IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20135
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DUNCAN BURTON,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-95-CR-303-9
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January 16, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Duncan Burton appeals his jury convictions and sentences for
conspiracy and possession of cocaine with intent to distribute.
The district court did not err in admitting into evidence the
cocaine Burton turned over to authorities or in instructing the
jury to use the cocaine in its resolution of the conspiracy charge
because the ultimate fact of when Burton had withdrawn from the
conspiracy had never been determined by a valid and final judgment.
United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997).
The principle announced in Apprendi v. New Jersey, 530 U.S. 466
*
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that this opinion should not be published and is not precedent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. 01-20135
-2-
(2000), does not apply as Burton was sentenced within the statutory
maximum. See United States v. Cathey, 259 F.3d 365, 368 & n.12
(5th Cir. 2001). The district court did not err in denying
Burton’s late-hour request for subpoenas because Burton failed to
demonstrate the necessity of the named witnesses. See United
States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982); United
States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980). The evidence
was sufficient to prove beyond a reasonable doubt that Burton knew
that he was engaged in drug trafficking. United States v. Medina,
161 F.3d 867, 873 (5th Cir. 1998); United States v. Gonzales, 79
F.3d 413, 423 (5th Cir. 1996).
Because Burton’s base offense level was based upon his
personal participation in the conspiracy, the district court did
not clearly err in denying his request for a minor role adjustment.
United States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995).
Finally, because the court did not misapprehend its authority under
the Sentencing Guidelines, we lack jurisdiction to review the
district court’s refusal to grant a downward departure under
U.S.S.G. § 5K2.16 based on Burton’s voluntary disclosure of his
conduct. United States v. DiMarco, 46 F.3d 476, 478 (5th Cir.
1995). That portion of the appeal is DISMISSED. Id.
AFFIRMED IN PART; DISMISSED IN PART.