United States v. Ashley Simpson

Case: 17-10313 Document: 00514296284 Page: 1 Date Filed: 01/05/2018

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 17-10313 FILED
Summary Calendar January 5, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ASHLEY SIMPSON,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-213-1

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Ashley Simpson appeals the 262-month sentence imposed following her
guilty plea conviction of conspiracy to possess with intent to distribute a
controlled substance. She challenges the district court’s denial of her motion
for a downward departure and the application of the two-level enhancement
pursuant to U.S.S.G. § 2D1.1(b)(5) for importation of methamphetamine. The

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
 Case: 17-10313 Document: 00514296284 Page: 2 Date Filed: 01/05/2018

No. 17-10313

Government has moved for summary affirmance in lieu of filing an appellate
brief or, alternatively, an extension of time to file a brief.
We lack jurisdiction to review the denial of a downward departure unless
the district court held the mistaken belief that it lacked the authority to depart.
United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006). Here, the record does
not reflect that the district court was unaware that it could depart; instead,
the record supports that the court concluded that Simpson’s motion for a
downward departure should be denied because a sentence at the bottom of the
guidelines range was appropriate. Thus, we lack jurisdiction to consider any
argument challenging the district court’s decision to deny Simpson’s motion for
a downward departure. See Sam, 467 F.3d at 861.
Simpson next asserts that the district court erred in applying the two-
level enhancement under § 2D1.1(b)(5) on grounds that there was no proof that
she knew the methamphetamine came from Mexico. However, she correctly
concedes that her assertion is foreclosed by United States v. Serfass, 684 F.3d
548 (5th Cir. 2012), and seeks only to preserve it for further review.
Summary affirmance is not appropriate, and the Government’s motion
is DENIED. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969). The Government’s alternative motion for an extension of time to
file a brief is DENIED as unnecessary. The appeal is DISMISSED in part for
lack of jurisdiction, and the judgment of the district court is AFFIRMED in
part.

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