United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 22, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-10923
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT EUGENE JACKSON, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-347-1-P
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Before JOLLY, JONES and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Robert Eugene Jackson, Jr., appeals from his resentencing
following his guilty-plea conviction for using a facility of
interstate commerce to entice a minor to engage in illegal sexual
activity, in violation of 18 U.S.C. § 2422(b). He argues that he
was denied his right of allocution at his resentencing hearing.
We review this issue de novo. See United States v. Myers, 150
F.3d 459, 461 (5th Cir. 1998). After examination of 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that this opinion should not be published and is not precedent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. 02-10923
-2-
resentencing transcript, we hold that the district court did not
reversibly err in providing Jackson with his right of allocution.
See United States v. Delgado, 256 F.3d 264, 279 (5th Cir. 2001);
Gordon v. United States, 438 F.2d 858, 880-81 (5th Cir. 1971).
Jackson also challenges the extent of the upward departure
imposed by the district court as excessive. He concedes the
validity of the factors upon which the upward departure was
based. Because the upward departure was within the statutory
limit, the extent of the departure is reviewed only for a “gross
abuse of discretion.” United States v. Laury, 985 F.2d 1293,
1310-11 (5th Cir. 1993) (internal quotation marks and citations
omitted). Because the upward departure in this case is
comparable to others that this court has upheld, the district
court did not commit a gross abuse of discretion in determining
the extent of the departure. See United States v. Daughenbaugh,
49 F.3d 171, 174-75 (5th Cir. 1995); United States v. Ashburn, 38
F.3d 803, 809-10 (5th Cir. 1994)(en banc). Moreover, the instant
departure was not sufficiently great that the district court was
required to provide a detailed explanation of why lesser
departure levels were inadequate. See Ashburn, 38 F.3d at 809.
Accordingly, the district court’s judgment of conviction is
AFFIRMED.