*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined that

this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 95-50115

(Summary Calendar)

_________________________

UNITED STATES OF AMERICA,

Plaintiff/Appellee,

versus

NICHELLE RAE BERG,

Defendant/Appellant.

__________________________________________________

Appeal from United States District Court

for the Western District of Texas

(94-CR-120-ALL)

__________________________________________________

(September 26, 1995)

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Appellant, Nichelle Rae Berg, appeals the sentence imposed by

the district court on the ground that the district judge mistakenly

believed he lacked the authority to depart downward from Sentencing

Guidelines using the "battered wife syndrome." For the following

reasons, we DISMISS the appeal.
2

FACTS

Nichelle Rae Berg was convicted by jury of possession with

intent to distribute marijuana and importation of marijuana. Berg

moved for downward departure under U.S.S.G. § 5K2.12 at sentencing.

Berg alleged that she was entitled to downward departure because

her boyfriend subjected her to coercion and duress to commit the

offense by his history of physical abuse. Berg contended that she

suffered from the "battered woman syndrome," creating a legal

consideration for departure under section 5K2.12. In denying

Berg's motion for downward departure based on the "battered woman

syndrome," the district court stated, "Ms. Scott, Ms. Berg, it

gives me no pleasure to deny your request. I could see it if she

had gotten in that car and driven over him, and I gladly would have

given her a departure." The district court sentenced her at the

low end of the sentencing range to thirty (30) months imprisonment

and three (3) years supervised release. Berg timely appealed.

DISCUSSION

Berg argues that the district court erred in failing to depart

downward under U.S.S.G. § 5K2.12 based on her alleged coercion and

duress. The heart of Berg's argument rests on the comment the

district court made when denying her request: "I could see it if

she had gotten in that car and driven over him, and I gladly would

have given her a departure.". Berg contends that the statement

reflects the district court's erroneous conclusion that it lacked

legal authority to grant such departure. She argues that the

district court unquestionably possessed authority under section
 

1A court may depart downward from the guidelines only for

circumstances not adequately considered by the Sentencing

Commission in formulating the guidelines. United States v.

3

5K2.12 to depart downward based on coercion and duress inflicted

through the "battered woman syndrome;" therefore, Berg presumes

that the district court acted entirely under the mistaken belief

that physical abuse could be a departure factor only if the offense

was committed against her abuser. 

 On the other hand, the Government argues that Berg draws the

wrong inference from the district court's statement. The

Government contends that the district court denied departure

because it found that Berg did not allege the type of facts that

would qualify her for downward departure. Rather than stating a

belief that it lacked authority, the Government argues that the

district court stated its belief that abuse did not motivate Berg

to commit the crime. 

Before addressing the merits of Berg's appeal, we must

determine whether we have jurisdiction to review it. This Court

lacks jurisdiction to review a defendant's challenge to her

sentence based on mere dissatisfaction with the court's refusal to

grant a downward departure. United States v. DiMarco, 46 F.3d 476,

477 (5th Cir. 1995). However, jurisdiction will lie if the

sentencing court's refusal to depart downward was the result of a

violation of the law or a misapplication of the guidelines. Id.;

United States v. Guajardo, 950 F.2d 203, 207-08 (5th Cir. 1991),

cert. denied, 503 U.S. 1009, 112 S. Ct. 1773, 118 L. Ed. 2d 432

(1992).1 If the Court has jurisdiction to review, legal
Sparks, 2 F.3d 574, 589 (5th Cir. 1993), cert. denied, -- U.S. --

, 114 S. Ct. 899, 127 L. Ed. 2d 91 (1994); see also § 5K2.0. A

factor identified by the guidelines is one that "the Commission

has not been able to take into account fully" is coercion and

duress. See §§ 5K2.0, 5K2.12. The sentencing court may depart

downward if "the defendant committed the offense because of

serious coercion, blackmail or duress, under circumstances not

amounting to a complete defense. . . ." § 5K2.12.

4

conclusions are reviewed de novo, and findings of fact are reviewed

for clear error. United States v. Mourning, 914 F.2d 699, 704 (5th

Cir. 1990). 

After a review of the record, we find that the record amply

demonstrates that the district court knew it had authority to

depart from the guidelines using the duress and coercion that

epitomizes the "battered wife syndrome." The statement, when

placed in the context of the entire proceeding, manifests that the

district court acknowledge that it could have granted the departure

using the "battered wife syndrome" if the facts had so justified.

Not surprisingly, the Addendum to Berg's Presentence Report

recommends against departure based upon the inapplicability of the

"battered wife syndrome" to the extant facts rather than the

absence of authority under the Sentencing Guidelines. The Addendum

provides as follows:

As the Court is aware, although testimony was provided by

the defense indicating that Berg had been physically

abused by her boyfriend, Jaime, there was never any

report to the police nor did she seek medical attention

for her injuries resulting from the beatings.

Furthermore, the defendant claims her relationship with

Jaime, was for approximately one year and three months on

a dating basis. The aspect of Berg's defense which

considers her lack of knowledge of the marijuana in the

vehicle is totally inconsistent with her being afraid or
5

intimidated by her boyfriend, Jaime, into participating

in the instant offense. Further, if the defendant had

truly been in fear of her life or afraid to participate

in the instant offense, she had ample opportunity

throughout the series of events to flee or choose not to

participate in the instant offense. Although Berg was

probably physically abused by Jaime, the circumstances of

this offense indicate that Berg was motivated by reasons

other than fear to participate in the criminal activity.

We are convinced that the district court was well aware that it had

authority to depart, but exercised its discretion not to do so. We

cannot say that the district court's decision not to depart using

the "battered wife syndrome" in this particular case is clearly

erroneous.

Berg's claims clearly underscore her dissatisfaction with the

district court's refusal to use the "battered wife syndrome" to

depart downward; the claims do not involve legal error or

misapplication of the guidelines. Therefore, this Court may

proceed no further as it lacks jurisdiction to otherwise consider

the denial of the departure. See DiMarco, 46 F.3d at 477. 

The appeal is DISMISSED.