* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

October 21, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40235

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDRES MARTINEZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

(C-02-CR-252-6)

--------------------

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Andres Martinez pleaded guilty to

conspiracy to possess with intent to distribute more than 500 grams

of methamphetamine. Martinez appeals his 168 month sentence,

arguing that the district court abused its discretion when it

denied his motion to continue the sentencing hearing so that the

government could evaluate the information that he had provided on

the morning of sentencing, and to allow him time to provide
2

additional information in hopes of securing a motion for downward

departure pursuant to U.S.S.G. § 5K1.1. 

The government was not obligated to file a motion for downward

departure under § 5K1.1 if, in its evaluation and discretion,

Martinez had not provided substantial assistance. Martinez was

afforded several opportunities to cooperate with government. His

cooperation, however, came too late, and the government determined

that the information provided by Martinez was not useful. In any

event, Martinez was not prejudiced by the denial of his motion,

because, under Rule 35(b) of the Federal Rules of Criminal

Procedure, the government was permitted to file a post-sentencing

motion for a reduction in Martinez’s sentence based on his

assistance. FED. R. CRIM. P. 35(b). Accordingly, Martinez has not

proven that the district court abused its discretion and that he

suffered prejudice resulting from the denial of his motion to

continue. United States v. Peden, 891 F.2d 514, 519 (5th Cir.

1989).

Martinez also appeals his 168 month sentence on the grounds

that the district court made insufficient findings to support the

total drug quantity attributed to him under U.S.S.G. §§ 2D1.1 and

1B1.3, and that it erred when it denied him a two-level reduction

in his base offense level under U.S.S.G. § 3B1.2 for his minor role

in the offense. 

Martinez filed written objections to the presentence report

challenging the accuracy of the drug quantity calculation and his
3

role in the offense. At the sentencing hearing, Martinez informed

the district court that he was not pursuing the written objections

to the presentence report, that the presentence report was

correctly written in all respects, and that the district court

could rely upon the presentence report in determining his sentence.

Martinez has thus waived any challenge to the accuracy of the drug

quantity calculation and his role in the offense, and his argument

is not reviewable on appeal. See United States v. Musquiz, 45 F.3d

927, 931 (5th Cir. 1995); United States v. Olano, 507 U.S. 725, 733

(1993).

The judgment of the district court is 

AFFIRMED.