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

                                                                            FILED
                                                                         December 4, 2008
                                     No. 08-30074
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

MICHAEL WILLIAMS, also known as Swag

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 3:06-CR-30053-2


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Michael Williams pled guilty to conspiracy to distribute 50 grams or more
of crack cocaine. The district court sentenced Williams to 135 months in prison,
which was at the bottom of the advisory Guideline range, followed by a five-year
term of supervised release. On appeal, Williams argues that the district court
erroneously concluded it was without authority to impose a certain downward
departure absent a motion and that such a conclusion constituted reversible
error under United States v. Booker, 543 U.S. 220 (2005). We AFFIRM.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-30074

      Williams’s assertion that the district court erroneously believed that it did
not have the authority to depart from the Sentencing Guidelines vests us with
jurisdiction to consider this appeal. See United States v. Hernandez, 457 F.3d
416, 424 & n.5 (5th Cir. 2005).          We review a sentencing decision for
“reasonableness” by applying an abuse-of-discretion standard. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).         A district court’s
interpretation or application of the Guidelines is reviewed de novo. Factual
findings are reviewed for clear error. Id.
      The sentencing judge decided that a minimum Guidelines sentence
properly reflected the cooperation Williams provided. The judge’s statement
that the possibility of a departure for substantial assistance was “the
government’s decision” was in reference to Williams’s repeated, specific
questioning about whether the government planned to make a Section 5K1.1
motion. Williams and his counsel did not urge the district judge to use his own
discretion to give a below-Guidelines sentence. Further, Williams offered scant
evidence about assistance.
      The district judge also noted that he had considered the factors in 18
U.S.C. § 3553(a), including the nature and circumstances of the offense and
Williams’s criminal history. As in Cisneros-Gutierrez, there was “no indication
in the district court’s comments that it believed the Guidelines range
presumptively should apply”; rather, after consideration, it “concluded that the
Guidelines provided an appropriate sentencing range.” 517 F.3d at 766; see also
United States v. Washington, 480 F.3d 309, 320 (5th Cir. 2007) (“[T]he district
court implicitly recognized that it could deviate from the Guidelines, but based
on the facts before it, decided not to do so.”).
      Because the district judge did not treat the Guidelines as mandatory and
considered Williams’s cooperation, there was no error. We AFFIRM.




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