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

                                                FILED
                                                                October 22, 2009
                               No. 08-51156
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

BRUCE ALLEN MCCOWAN,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 7:08-CR-63-ALL


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
      Bruce Allen McCowan entered a conditional guilty plea to a federal
indictment charging him with possession with intent to distribute five or more
grams of a mixture and substance containing crack cocaine in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B), and received a within-guidelines sentence of
92 months in prison to be followed by five years of supervised release. On
appeal, McCowan challenges the sentence imposed, asserting that the district



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-51156

court erred by not considering a purported breach of a state nonprosecution
agreement and his fulfillment of that agreement in determining his sentence.
      To the extent that McCowan contends that the district court erred by not
granting a downward departure, we lack jurisdiction to consider this issue, as
there is no indication in the record that the district court mistakenly believed it
did not have authority to depart. See United States v. Hernandez, 457 F.3d 416,
424 (5th Cir. 2006); United States v. Lucas, 516 F.3d 316, 350 (5th Cir.), cert.
denied, 129 S. Ct. 116 (2008). To the extent that McCowan argues that the
district court abused its discretion by not reducing his sentence pursuant to 18
U.S.C. § 3553(a), his argument is unavailing. It is clear from the record that the
district court heard and considered McCowan’s arguments prior to imposing a
sentence as well as conflicting testimony about whether McCowan actually
fulfilled his duties under the agreement and whether McCowan himself
breached the agreement. We find no abuse of discretion in the court’s decision
not to reduce McCowan’s sentence below the presumptively reasonable
guidelines range. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      McCowan also argues that the district court erred in not considering any
remedy, in particular equitable relief, for the detective’s alleged breach of the
nonprosecution agreement. State immunity agreements do not bind federal
prosecutors who have not authorized the agreements. United States v. Roberson,
872 F.2d 597, 611 (5th Cir. 1989). McCowan provides no binding authority to
suggest that the district court was otherwise required to remedy his sentence as
a matter of equity.    Moreover, as discussed above, the district court fully
considered, but ultimately implicitly rejected, McCowan’s request for a reduced
sentence based on the nonprosecution agreement. We decline to disturb the
district court’s sentence on this basis. See United States v. Campos-Maldonado,
531 F.3d 337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
      Accordingly, the judgement of the district court is AFFIRMED.



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