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

                                                 FILED
                                                                         November 3, 2009
                                     No. 07-60583
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DARIC M JOHNSON, also known as Skeeter,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:02-CR-9-1


Before JONES, Chief Judge, WIENER and PRADO, Circuit Judges.
PER CURIAM:*
       Daric M. Johnson was convicted by a jury of conspiracy to possess with
intent to distribute controlled substances, with possession with intent to
distribute marijuana, crack cocaine, and powder cocaine, and with being a felon
in possession of a firearm. We affirmed Johnson’s convictions on direct appeal,
but his case was remanded for resentencing in light of the Supreme Court’s
decision in United States v. Booker, 542 U.S. 220 (2005). The district court
resentenced Johnson under the advisory Sentencing Guidelines to an aggregated
294-month term of imprisonment, and Johnson now appeals his sentence.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-60583

      Johnson makes an argument with respect to a motion filed under
18 U.S.C. § 3582(c)(2) that has not yet been ruled upon by the district court.
That argument is not yet ripe for review. United States v. Carmichael, 343 F.3d
756, 761-62 (5th Cir. 2003). He also disagrees with the district court’s refusal
to grant his request for a downward departure based on his medical condition.
However, because there is no indication that the district court was unaware of
its authority to depart downward in its discretion, we lack jurisdiction to review
the district court’s refusal. See United States v. Lucas, 516 F.3d 316, 350 (5th
Cir.), cert. denied, 129 S. Ct. 116 (2008). With respect to these two arguments,
we dismiss Johnson’s appeal for lack of jurisdiction.
      Johnson argues his Sixth Amendment right to a speedy trial was violated
by an unreasonable 23-month delay between the time his case was remanded
and the time that he was actually resentenced. That delay is long enough to
trigger an analysis of the delay. See Doggett v. United States, 505 U.S. 647, 652
n.1 (1992).   For the first 11 of those months, Johnson’s resentencing was
continued due to the district court’s displacement from and ultimate relocation
to the Gulfport, Mississippi, courthouse as a result of the devastation wrought
by Hurricane Katrina. The district court rescheduled the matter several times
due to Johnson’s chronic illness, administrative issues, and the substitution of
new appointed counsel at Johnson’s request. The district court also sua sponte
continued the matter without giving reasons. Johnson never filed a motion
seeking a speedy resentencing. See Cowart v. Hargett, 16 F.3d 642, 647 (5th Cir.
1994) (stating motion to dismiss charges due to delay is not an assertion of
speedy-trial right). Johnson has not shown prejudice from the delay because he
is still able to file a postconviction motion. We hold that there was no violation
of the Sixth Amendment with respect to the delay in Johnson’s resentencing.
See Barker v. Wingo, 407 U.S. 514, 530 (1972).
      Johnson argues that, under F ED. R. C RIM. P. 32(c), he was entitled to have
a new presentence report (PSR) prepared prior to being resentenced. While


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                                  No. 07-60583

Rule 32(c) does require the preparation of a PSR, nothing in Rule 32 supports
Johnson’s argument that he was entitled to have a new PSR prepared prior to
resentencing on remand. Johnson also asserts for the first time on appeal that
the district court failed to inquire whether he and his counsel had read and
discussed the PSR. Johnson’s counsel submitted a sentencing memorandum
addressing the PSR’s findings and, at resentencing, both Johnson and his
counsel made arguments with regard to the guidelines calculations contained in
the PSR. Johnson has not met his burden of showing plain error with regard to
this newly raised claim. See Puckett v. United States, 129 S. Ct. 1423, 1429
(2009); United States v. Esparza-Gonzalez, 268 F.3d 272, 274 (5th Cir. 2001).
      Johnson argues that there was no reliable evidence to support the district
court’s four-level increase in his offense level pursuant to U.S.S.G. § 3B1.1(a) for
his leadership role in the offense. He challenges the district court’s findings on
drug quantity for purposes of establishing his base offense level under U.S.S.G.
§ 2D1.1. He also challenges the two-level increase pursuant to § 2D1.1(b)(1)
based on the finding that he possessed a firearm in connection with the drug
trafficking offense. With respect to each of these enhancements, the district
court’s factual findings are reviewed for clear error. United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).         Having reviewed the trial
transcript and the unrefuted information contained in the PSR, we conclude that
there was sufficient reliable information to support the district court’s factual
findings. We also conclude that the district court adequately stated its findings
with regard to these enhancements. The sentence imposed by the district court
is procedurally sound, and Johnson does not challenge the substantive
reasonableness of the sentence.      Thus, the district court did not abuse its
discretion in resentencing Johnson. Gall v. United States, 128 S. Ct. 586, 596-97
(2007).
      APPEAL DISMISSED IN PART; AFFIRMED IN PART.




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