IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60582
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD T. HAMLET, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:01-CR-192-ALL-BS
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January 29, 2003
Before JONES, STEWART, and DENNIS, Circuit Judges:
PER CURIAM:*
Edward T. Hamlet, Jr., pleaded guilty to an indictment
charging him with failing to pay child support in violation of the
felony provisions of the Deadbeat Parents Punishment Act (“DPPA”).
Hamlet has appealed his sentence.
Hamlet contends that the district court erred by
increasing his offense level for obstruction of justice because
Hamlet had testified falsely under oath at the change-of-plea
hearing that he had four children when, in fact, he had five. The
*
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this opinion should not be published and is not precedent except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. 02-60582
-2-
fact that Hamlet had a child for which he had failed to take any
responsibility was relevant and material to Hamlet’s sentence. See
United States v. Adam, 296 F.3d 327, 334-35 (5th Cir. 2002). The
district court’s finding that Hamlet misled the court willfully was
not clearly erroneous. See United States v. Bethley, 973 F.2d 396,
402 (5th Cir. 1992) (standard of review).
Hamlet contends that his offense level should have been
reduced for acceptance of responsibility. The district court
concluded from Hamlet’s failure to disclose that he had a fifth
child and from Hamlet’s fatuous explanation for that omission that
Hamlet had not accepted responsibility. No error has been shown.
Hamlet argues that he did not have an ability to pay
child support during an 18-month period beginning before and ending
after his heart-valve-replacement surgery. Hamlet contends that
his failure to pay during that period was not “willful.”
Accordingly, he contends, the amount of the loss should have been
reduced by the sum owed for that period, $33,000. Hamlet
challenges his guideline calculation under U.S.S.G. § 2B1.1(b) only
and does not contend that the amount of restitution should be
reduced. Because consideration of the $33,000 sum did not affect
the district court’s selection of the sentence imposed, any error
by the district court was harmless. See Williams v. United States,
503 U.S. 193, 203 (1992).
Hamlet contends that the district court should have
departed downward pursuant to U.S.S.G. § 5H1.4 because he suffers
No. 02-60582
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from a serious heart condition. This court has “jurisdiction to
review the district court's decision not to depart downward from
the guideline range only if the court based its decision upon an
erroneous belief that it lacked the authority to depart.” United
States v. Yanez-Huerta, 207 F.3d 746, 748 (5th Cir. 2000). The
record reflects that the district court understood the extent of
its discretion but determined that a departure was not appropriate
under the facts of this case. The judgment is
AFFIRMED.