     Case: 10-40090     Document: 00511266467          Page: 1    Date Filed: 10/18/2010




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

                                                  FILED
                                                                          October 18, 2010
                                     No. 10-40090
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

OCTAVIAS LARAY PERRY,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-741-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Octavias Laray Perry appeals the sentence imposed following his jury
conviction for being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2). He argues that the district court incorrectly determined
that it was precluded from departing downward under U.S.S.G. § 5K2.12 based
on an incomplete duress defense because the jury had rejected his duress defense
at trial.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40090   Document: 00511266467 Page: 2       Date Filed: 10/18/2010
                                No. 10-40090

      Perry has not shown that the district court incorrectly determined that it
lacked the authority to depart downward under § 5K2.12. The record reflects
that the district court considered defense counsel’s arguments at sentencing for
a downward departure, the Presentence Report (PSR), the 18 U.S.C. § 3553(a)
factors, and Perry’s allocution. Although the district court noted that the jury
had rejected the duress defense and Perry’s version of the facts at trial, the
district court’s comments do not indicate that it was under the mistaken belief
that it lacked the authority to depart downward under § 5K2.12 due to the jury’s
rejection of the duress defense. The district court found that, even assuming
that the facts were as Perry presented them, a downward departure based on
duress under § 5K2.12 was not warranted because Perry had other options on
the night of the offense. After considering Perry’s arguments, the PSR, and the
§ 3553(a) factors, the district court implicitly denied Perry’s request for a
downward departure and expressly determined that a forty-one month sentence
within the advisory guidelines range was appropriate. Thus, the record does not
indicate that the district court held the erroneous belief that it lacked the
authority to depart downward. See United States v. Valencia-Gonzales, 172 F.3d
344, 346 (5th Cir. 1999). Therefore, this court lacks the jurisdiction to review
the district court’s denial of Perry’s request for a downward departure. See
United States v. Lucas, 516 F.3d 316, 350 (5th Cir. 2008).
      APPEAL DISMISSED.




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