United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-51041
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DORIS DENISE MCELRATH-BEY,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-03-CR-114-2
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Doris Denise McElrath-Bey appeals the sentence imposed
following her guilty-plea conviction for one count of making a
false statement during acquisition of a firearm in violation of
18 U.S.C. § 922(a)(6) and § 924(a)(2). She asserts that the
district court erred in determining that her base offense level
was 20 on account of a prior state felony conviction for
residential arson. She also asserts that the district court
erred in failing to grant her a downward departure from 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that this opinion should not be published and is not precedent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. 03-51041
-2-
United States Sentencing Guidelines sentencing range because she
purchased a firearm in order to protect herself from threatened
harm.
Inasmuch as McElrath-Bey concedes that her prior state
felony conviction was for arson, an enumerated crime of violence
under the relevant sentencing guideline, the district court did
not err in determining that the base offense level was 20. See
U.S.S.G. § 2K2.1(a)(4)(A) and § 4B1.2(a)(2) and comment. (n.1).
The district court determined that the facts of the case did not
warrant a downward departure, and therefore this court does not
have jurisdiction to review the refusal to depart. United States
v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997).
AFFIRMED IN PART; DISMISSED IN PART FOR LACK OF
JURISDICTION.