United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-30577
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY PIERRE LEBLANC,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:03-CR-60049-ALL
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Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Terry Pierre LeBlanc (“LeBlanc”) appeals his 21-month
sentence for illegal discharge of pollutants into an area of
wetlands without a permit. Leblanc argues that the district
court failed to examine several factors that would have warranted
a downward departure under U.S.S.G. § 2Q1.3. He further contends
that the district court should not have assessed him a criminal
history point for his 1989 conviction for possession of marijuana
because the sentence imposed for that conviction occurred more
*
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this opinion should not be published and is not precedent except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. 04-30577
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than ten years before the November 19, 2002, date of the instant
offense as alleged in the indictment. LeBlanc further contends
that, pursuant to U.S.S.G. § 4A1.2(b), he should not have been
assessed any criminal history points for his 1989 conviction for
possession of marijuana and his 1998 conviction for driving while
intoxicated because he received suspended sentences for these
convictions.
This court has jurisdiction to review a district court’s
denial of a motion for a downward departure only if the district
court denied the motion based upon an error of law. See United
States v. Buck, 324 F.3d 786, 797 (5th Cir. 2003). The record
reflects that the district court denied LeBlanc’s motion to
depart after concluding that the departure was not warranted by
the facts of the case. As such, this court lacks jurisdiction to
review the denial of LeBlanc’s motion for a downward departure.
See Buck, 324 F.3d at 797.
A district court’s application of the sentencing guidelines
is reviewed de novo, and its findings of fact are reviewed for
clear error. See United States v. Stevenson, 126 F.3d 662, 664
(5th Cir. 1997). The record reflects that the LeBlanc’s
unauthorized operation of the landfill, which began in 1995, was
sufficiently connected to the instant offense to constitute
relevant conduct for sentencing purposes. See U.S.S.G. § 1B1.3;
United States v. Anderson, 174 F.3d 515, 527-28 (5th Cir. 1999).
As such, LeBlanc’s 1989 conviction for possession of marijuana
No. 04-30577
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was properly included in the calculation of his criminal history
category, since the sentence for that conviction occurred within
ten years of the commencement of the instant offense. See
U.S.S.G. § 4A1.2.
The record reflects that LeBlanc filed objections to the
presentence report arguing that he should not have been assessed
criminal history points for his prior convictions for which he
received suspended sentences. However, at the sentencing hearing
LeBlanc withdrew these objections. Waiver is the intentional
relinquishment or abandonment of a known right. United States v.
Olano, 507 U.S. 725, 733 (1993). The withdrawal of an objection
constitutes the waiver of the objection by the defendant. United
States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995). As such,
LeBlanc’s argument is unreviewable on appeal.
Accordingly, LeBlanc’s appeal is DISMISSED in part for lack
of jurisdiction and AFFIRMED in part.