IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50084
Conference Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID L. BISHOP,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA 93 CR 262
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April 18, 1996
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
This is an appeal from a guilty-plea conviction for two
counts of accepting a bribe to influence the performance of the
appellant's official duties in violation of 18 U.S.C.
§ 201(b)(2). Appellant argues that the district court misapplied
the U.S. Sentencing Guidelines because it erroneously believed
that it did not have the authority to grant a downward departure
under U.S.S.G. § 5K2.13 unless the appellant's diminished mental
capacity was the sole cause of the appellant's commission of the
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 95-50084
-2-
offense. Because the appellant did not object to the district
court's refusal to depart downward after the imposition of the
sentence, the plain error standard of review applied. United
States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir.)(en banc),
cert. denied, 112 S. Ct. 3039 (1992). Although the district
court used the word "cause" in explaining its decision, the
record as a whole indicates that the district court considered
all of the evidence presented at the sentencing hearing and
determined that a downward departure was not warranted because
the appellant's background did not contribute to the commission
of the offense. The record does not indicate that the district
court plainly erred in refusing to grant the downward departure.
Id. This court lacks jurisdiction to review the district court's
refusal to grant a downward departure because it was not a
violation of the law or a misapplication of the guidelines. See
United States v. DiMarco, 46 F.3d 476, 477 (5th Cir. 1995).
DISMISSED.