United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 26, 2007
Charles R. Fulbruge III
Clerk
No. 05-41599
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO ESPINOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2141-ALL
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Antonio Espinoza pleaded guilty to possession with
intent to distribute cocaine in excess of five kilograms in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Espinoza
appeals his sentence, baldly asserting that (1) the district
court erred when it refused to reduce his sentence pursuant to
U.S.S.G. § 5K1.1; (2) the district court erred when it failed to
continue his sentencing hearing so that the Government might file
a motion under § 5K1.1; and (3) he is entitled to a remand so
that the district court can determine why the Government failed
*
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this opinion should not be published and is not precedent except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. 05-41599
-2-
to file a motion pursuant to § 5K1.1. The brief comes perilously
close to failing to preserve any argument for appeal. See United
States v. Thames, 214 F.3d 608, 612 (5th Cir. 2000). His
assertions are frivolous.
The district court was without authority to reduce
Espinoza’s sentence in the absence of a Government motion under
U.S.S.G. § 5K1.1. See Wade v. United States, 504 U.S. 181, 184-
85 (1992); United States v. Price, 95 F.3d 367, 367-68 (5th Cir.
1996). The district court offered to continue the sentencing,
but Espinoza did not request it, and he has not alleged, much
less shown, that the district court’s failure to sua sponte
continue the hearing affected his substantial rights. See United
States v. Dominquez Benitez, 542 U.S. 74, 83 (2004); United
States v. Olano, 507 U.S. 725, 731-737 (1993). Finally,
Espinoza’s request for a remand is baseless given that the
district court is without authority to investigate why the
Government failed to file a motion under § 5K1.1 absent
allegations that it did so for unconstitutional reasons. See
Wade, 504 U.S. at 185; Price, 95 F.3d at 368.
The appeal is dismissed as frivolous. 5TH CIR. R. 42.2. We
caution counsel that filing frivolous appeals may be sanctioned.
United States v. Gaitan, 171 F.3d 222, 223 (5th Cir. 1999).
APPEAL DISMISSED; SANCTION WARNING ISSUED.