     Case: 18-10786      Document: 00515173915        Page: 1     Date Filed: 10/25/2019




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

                                   No. 18-10786
                                                                            Fifth Circuit

                                                                          FILED
                                 Summary Calendar                  October 25, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk


UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

ANGEL RENEE NORRIS,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 4:17-CR-158-5




Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *

      Angel Norris was convicted of conspiracy to possess with intent to



      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 18-10786       Document: 00515173915         Page: 2    Date Filed: 10/25/2019


                                      No. 18-10786

distribute more than 50 grams of a mixture and substance containing a detec-
table amount of methamphetamine in violation of 21 U.S.C. §§ 846 and
841(a)(1) and (b)(1). The district court sentenced Norris, at the top of the guide-
line range, to 188 months of imprisonment.

       On appeal, Norris contends that the Petite 1 policy precludes her federal
prosecution for conspiracy to possess with intent to distribute methampheta-
mine, given her state prosecution for possession with intent to deliver metham-
phetamine. Because she did not raise that argument in the district court,
review is for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).

       “Courts have consistently held that the Petite policy is an internal rule
of the Justice Department; criminal defendants may not invoke it to bar prose-
cution by the federal government.” United States v. Harrison, 918 F.2d 469,
475 (5th Cir. 1990) (citations omitted). Therefore, Norris cannot rely on the
Petite policy to assert error in her federal prosecution.

       Norris maintains that her federal prosecution is double jeopardy. That
theory is underdeveloped at best, and her brief offers no analysis or citation to
relevant caselaw in support. She has abandoned the issue by failing to brief
it. See United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001).

       Norris avers that at sentencing, the district court erred in considering
the conduct underlying her arrest for aggravated assault with a deadly weapon
because the state grand jury “no-billed” the criminal charge. Because Norris
preserved the issue by raising an objection at sentencing, the claimed error is
reviewed de novo. United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012).
The district court’s factual findings are reviewed for clear error. Id.



       1The Supreme Court first acknowledged this policy in Petite v. United States, 361 U.S.
529, 530−31 (1960) (per curiam).


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                                 No. 18-10786

      The district court found that, even though the state grand jury did not
indict Norris for aggravated assault with a deadly weapon, a preponderance of
the evidence supported that she “did the things described in [the presentence
report].” “It is well-established that prior criminal conduct not resulting in a
conviction may be considered by the sentencing judge.” United States v. Lopez-
Velasquez, 526 F.3d 804, 807 (5th Cir. 2008) (internal quotation marks and
citation omitted). Moreover, a no-bill does not preclude a court from finding by
a preponderance of the evidence that the defendant committed the conduct
underlying the no-billed offense. United States v. Fields, 932 F.3d 316, 323
(5th Cir. 2019). Because the presentence report’s description of the facts and
circumstances leading to Norris’s arrest for aggravated assault with the deadly
weapon was sufficiently reliable, the district court did not err in considering
it—in addition to Norris’s various other criminal convictions and mitigating
evidence—in selecting a sentence. See Harris, 702 F.3d at 231.

      Norris urges that the district court failed to consider how she had
“turned her life around” since being placed on probation for the state offense of
possession with intent to deliver a controlled substance and that her rehabilita-
tion efforts warranted a downward departure. This court lacks jurisdiction to
review the denial of a downward departure unless the denial was based on the
district court’s mistaken belief that it lacked the authority to depart. United
States v. Lucas, 516 F.3d 316, 350 (5th Cir. 2008). The record does not reflect
that the district court was unaware of its authority to depart from the guide-
lines, so we court lack jurisdiction to review the denial of Norris’s request for
a downward departure. See Lucas, 516 F.3d at 350.

      The judgment of conviction and sentence is AFFIRMED.




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