United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-61174
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHERRIE MILLER DALY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:03-CR-106
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Sherrie Miller Daly appeals from her sentence following a
guilty-plea conviction for conspiracy to structure transactions to
evade reporting requirements. She argues that the district court
erred by denying her motion for a downward departure based upon
surrogate assistance. Because the district court did not deny that
motion based upon a mistaken belief that it lacked the authority to
depart, this court lacks jurisdiction to review that denial. See
United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995).
*
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this opinion should not be published and is not precedent except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. 04-61174
-2-
Moreover, even if United States v. Booker, 125 S. Ct. 738 (2005),
is construed to allow this court’s review of the district court’s
denial of Daly’s motion for a downward departure, she has not shown
that the district court’s factual finding supporting that denial
was clearly erroneous. See United States v. Villanueva, 408 F.3d
193, 203 & n.9 (5th Cir. 2005), petition for cert. filed (July 26,
2005) (No. 05-5580).
Daly also contends that the district court improperly applied
an upward departure from the sentencing guidelines when determining
her sentence and subsequently altered the basis for that sentence
when setting forth the written judgment. These arguments lack
factual merit.
Accordingly, the district court’s judgment is AFFIRMED.