IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-2619
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIAN VERMONT BURLESON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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(May 18, 1994)
Before HIGGINBOTHAM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Julian Vermont Burleson pleaded guilty to being a convicted
felon in possession of a firearm and was convicted without a plea
bargain agreement. The district court sentenced Burleson to a
prison term of 27 months and a supervised release term of three
years and imposed a special assessment of $50. The prison term
was the lowest allowed under the applicable guidelines'
sentencing range.
Burleson provided law enforcement officers executing a state
probation revocation warrant permission to search his apartment.
During the search the officers discovered a functional .32
caliber revolver. Burleson told the probation officer that he
had purchased the revolver three years earlier for $20 and kept
No. 93-2619
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the gun because he needed it. At his rearraignment Burleson told
the district court that he possessed the pistol as collateral for
a loan he had made to an acquaintance.
Burleson argues that in light of his employment record and
commitment to his family, his possession of the firearm was the
type of aberrant behavior that this Court's legal precedent and
the sentencing guidelines intended to punish leniently through
downward departures from the applicable guidelines range.
The district court's determination that a proposed
justification for a downward departure does not warrant
departure, like fact-findings, is reviewed for clear error.
United States v. Williams, 974 F.2d 25, 26 (5th Cir. 1992), cert.
denied, 113 S.Ct. 1320 (1993).
The clearly erroneous standard requires affirmance if the
district court's account of the evidence is plausible in light of
the record viewed in its entirety, notwithstanding that the court
of appeals might have weighed the evidence differently to reach a
different conclusion had it been sitting as the trier of fact.
Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504,
84 L.Ed.2d 518 (1985).
The Court has noted that the guidelines do not define
"aberrant behavior" and that the term appears only in an
introductory section of the guidelines that does not resolve
application of the concept during sentencing. Williams, 974
F.2d at 26 & *. Citing the Seventh Circuit with approval, this
Court has held that:
No. 93-2619
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there must be some element of abnormal or
exceptional behavior . . . . A single act of
aberrant behavior . . . generally
contemplates a spontaneous and seemingly
thoughtless act rather than one which was the
result of substantial planning because an act
which occurs suddenly and is not the result
of a continued reflective process is one for
which the defendant may be arguably less
accountable.
Id. at 26-27 (internal quotation and citation omitted); see
United States v. O'Brien, 18 F.3d 301, 303 (5th Cir. 1994).
Although this Court has reserved the question whether a downward
departure for a single act of aberrant and violent behavior is
available under the guidelines, it is not necessary to reach the
issue in this case because the district court's factual finding
that Burleson's behavior was not aberrant was not clearly
erroneous as will be discussed below. See Williams, 974 F.2d at
26.
As the Court noted in Williams, the Sentencing Commission's
stand on aberrant behavior was that the Commission "`has not
dealt with single acts of aberrant behavior.'" Williams, 974
F.2d at 26 *.
A defendant's employment record and his family ties and
responsibilities are not ordinarily relevant in determining
whether a departure is warranted. U.S.S.G. §§ 5H1.5, 5H1.6; see
O'Brien, 18 F.3d at 302-03. Further, there is no indication in
the record that Burleson's possession of the firearm was the type
of aberrant, abnormal, or exceptional behavior envisioned by the
Court in Williams such that the district court's judgment would
be clearly erroneous. Even if Burleson possessed the gun only as
No. 93-2619
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collateral, this suggests a conscious and deliberate act and not
an aberrant or exceptional one.
The Sentencing Commission has explained that departures are
appropriate, "[w]hen a court finds an atypical case, one to which
a particular guideline linguistically applies but where conduct
significantly differs from the norm . . . ." U.S.S.G. Ch. 1,
Pt.A(4)(b), intro. comment. Burleson's possession of the firearm
is not the type of exceptional circumstance warranting departure.
See O'Brien, 18 F.3d at 303.
This Court will not review the district court's refusal to
depart from the guidelines unless the refusal was in violation of
the law. United States v. Mitchell, 964 F.2d 454, 462 (5th Cir.
1992). Such a violation of law occurs if the district court
refuses to depart under the mistaken assumption that it could not
legally do so. Id. In this case the district court chose not to
depart from the applicable guidelines range because it believed
that Burleson's behavior was not aberrant. The district court
did not err by refusing to grant the downward departure.
This appeal is frivolous. We caution counsel. Federal Public
Defenders are like all counsel subject to sanctions. They have
no duty to bring frivolous appeals; the opposite is true. See
United States v. Thomas, (5th Cir. May 18, 1994, No. 93-3558)
(unpublished; copy attached).
APPEAL DISMISSED.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-3558
Conference Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COREY GANNON THOMAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. CR-92-589 "H" (4)
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May 18, 1994
Before HIGGINBOTHAM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
No. 93-3558
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PER CURIAM:*
Corey Gannon Thomas pleaded guilty to possessing more than
two kilograms of cocaine with intent to distribute, and his
sentence was based on that amount. The factual basis of the plea
states that he possessed slightly more than two kilograms. The
district court's factual finding regarding that amount is not
clearly erroneous. See United States v. Montoya-Ortiz, 7 F.3d
1171, 1179 (5th Cir. 1993).
The district court rejected Thomas's argument that the
sentence should not have been based on two kilograms because he
did not have the actual ability to distribute that amount. We
review the district court's legal conclusions regarding the
Sentencing Guidelines de novo. Id.
Thomas relies on United States v. Garcia, 889 F.2d 1454,
1457 (5th Cir. 1989), cert. denied, 494 U.S. 1088 (1990). Garcia
holds that a defendant convicted of distribution of eight ounces
of cocaine may be sentenced on the basis of the eight ounces that
he actually distributed plus eight additional ounces that he
negotiated to distribute but never actually distributed. Id.
Garcia's crime of conviction was a choate offense, but his
sentence was properly based on completed and uncompleted
distribution. Id. That holding comports with U.S.S.G. § 2D1.1,
*
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.
No. 93-3558
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comment. (n.12), which addresses a quantity "under negotiation in
an uncompleted distribution."
In the instant case, there is no uncompleted amount. Thomas
actually possessed two kilograms, and he was sentenced on the
basis of that amount. Garcia is inapposite.
This appeal borders on being frivolous. We caution counsel.
Federal Public Defenders are like all counsel subject to
sanctions. They have no duty to bring frivolous appeals; the
opposite is true. See United States v. Burleson, ___ F.3d ___
(5th Cir. May 18, 1994, No. 93-2619).
AFFIRMED.