IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50115
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff/Appellee,
versus
NICHELLE RAE BERG,
Defendant/Appellant.
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Appeal from United States District Court
for the Western District of Texas
(94-CR-120-ALL)
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(September 26, 1995)
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Appellant, Nichelle Rae Berg, appeals the sentence imposed by
the district court on the ground that the district judge mistakenly
believed he lacked the authority to depart downward from Sentencing
Guidelines using the "battered wife syndrome." For the following
reasons, we DISMISS the appeal.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined that
this opinion should not be published.
FACTS
Nichelle Rae Berg was convicted by jury of possession with
intent to distribute marijuana and importation of marijuana. Berg
moved for downward departure under U.S.S.G. § 5K2.12 at sentencing.
Berg alleged that she was entitled to downward departure because
her boyfriend subjected her to coercion and duress to commit the
offense by his history of physical abuse. Berg contended that she
suffered from the "battered woman syndrome," creating a legal
consideration for departure under section 5K2.12. In denying
Berg's motion for downward departure based on the "battered woman
syndrome," the district court stated, "Ms. Scott, Ms. Berg, it
gives me no pleasure to deny your request. I could see it if she
had gotten in that car and driven over him, and I gladly would have
given her a departure." The district court sentenced her at the
low end of the sentencing range to thirty (30) months imprisonment
and three (3) years supervised release. Berg timely appealed.
DISCUSSION
Berg argues that the district court erred in failing to depart
downward under U.S.S.G. § 5K2.12 based on her alleged coercion and
duress. The heart of Berg's argument rests on the comment the
district court made when denying her request: "I could see it if
she had gotten in that car and driven over him, and I gladly would
have given her a departure.". Berg contends that the statement
reflects the district court's erroneous conclusion that it lacked
legal authority to grant such departure. She argues that the
district court unquestionably possessed authority under section
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5K2.12 to depart downward based on coercion and duress inflicted
through the "battered woman syndrome;" therefore, Berg presumes
that the district court acted entirely under the mistaken belief
that physical abuse could be a departure factor only if the offense
was committed against her abuser.
On the other hand, the Government argues that Berg draws the
wrong inference from the district court's statement. The
Government contends that the district court denied departure
because it found that Berg did not allege the type of facts that
would qualify her for downward departure. Rather than stating a
belief that it lacked authority, the Government argues that the
district court stated its belief that abuse did not motivate Berg
to commit the crime.
Before addressing the merits of Berg's appeal, we must
determine whether we have jurisdiction to review it. This Court
lacks jurisdiction to review a defendant's challenge to her
sentence based on mere dissatisfaction with the court's refusal to
grant a downward departure. United States v. DiMarco, 46 F.3d 476,
477 (5th Cir. 1995). However, jurisdiction will lie if the
sentencing court's refusal to depart downward was the result of a
violation of the law or a misapplication of the guidelines. Id.;
United States v. Guajardo, 950 F.2d 203, 207-08 (5th Cir. 1991),
cert. denied, 503 U.S. 1009, 112 S. Ct. 1773, 118 L. Ed. 2d 432
(1992).1 If the Court has jurisdiction to review, legal
1
A court may depart downward from the guidelines only for
circumstances not adequately considered by the Sentencing
Commission in formulating the guidelines. United States v.
3
conclusions are reviewed de novo, and findings of fact are reviewed
for clear error. United States v. Mourning, 914 F.2d 699, 704 (5th
Cir. 1990).
After a review of the record, we find that the record amply
demonstrates that the district court knew it had authority to
depart from the guidelines using the duress and coercion that
epitomizes the "battered wife syndrome." The statement, when
placed in the context of the entire proceeding, manifests that the
district court acknowledge that it could have granted the departure
using the "battered wife syndrome" if the facts had so justified.
Not surprisingly, the Addendum to Berg's Presentence Report
recommends against departure based upon the inapplicability of the
"battered wife syndrome" to the extant facts rather than the
absence of authority under the Sentencing Guidelines. The Addendum
provides as follows:
As the Court is aware, although testimony was provided by
the defense indicating that Berg had been physically
abused by her boyfriend, Jaime, there was never any
report to the police nor did she seek medical attention
for her injuries resulting from the beatings.
Furthermore, the defendant claims her relationship with
Jaime, was for approximately one year and three months on
a dating basis. The aspect of Berg's defense which
considers her lack of knowledge of the marijuana in the
vehicle is totally inconsistent with her being afraid or
Sparks, 2 F.3d 574, 589 (5th Cir. 1993), cert. denied, -- U.S. --
, 114 S. Ct. 899, 127 L. Ed. 2d 91 (1994); see also § 5K2.0. A
factor identified by the guidelines is one that "the Commission
has not been able to take into account fully" is coercion and
duress. See §§ 5K2.0, 5K2.12. The sentencing court may depart
downward if "the defendant committed the offense because of
serious coercion, blackmail or duress, under circumstances not
amounting to a complete defense. . . ." § 5K2.12.
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intimidated by her boyfriend, Jaime, into participating
in the instant offense. Further, if the defendant had
truly been in fear of her life or afraid to participate
in the instant offense, she had ample opportunity
throughout the series of events to flee or choose not to
participate in the instant offense. Although Berg was
probably physically abused by Jaime, the circumstances of
this offense indicate that Berg was motivated by reasons
other than fear to participate in the criminal activity.
We are convinced that the district court was well aware that it had
authority to depart, but exercised its discretion not to do so. We
cannot say that the district court's decision not to depart using
the "battered wife syndrome" in this particular case is clearly
erroneous.
Berg's claims clearly underscore her dissatisfaction with the
district court's refusal to use the "battered wife syndrome" to
depart downward; the claims do not involve legal error or
misapplication of the guidelines. Therefore, this Court may
proceed no further as it lacks jurisdiction to otherwise consider
the denial of the departure. See DiMarco, 46 F.3d at 477.
The appeal is DISMISSED.
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