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this opinion should not be published and is not precedent except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

January 10, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-30577

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRY PIERRE LEBLANC,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:03-CR-60049-ALL 

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

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Terry Pierre LeBlanc (“LeBlanc”) appeals his 21-month

sentence for illegal discharge of pollutants into an area of

wetlands without a permit. Leblanc argues that the district

court failed to examine several factors that would have warranted

a downward departure under U.S.S.G. § 2Q1.3. He further contends

that the district court should not have assessed him a criminal

history point for his 1989 conviction for possession of marijuana

because the sentence imposed for that conviction occurred more
No. 04-30577

-2-

than ten years before the November 19, 2002, date of the instant

offense as alleged in the indictment. LeBlanc further contends

that, pursuant to U.S.S.G. § 4A1.2(b), he should not have been

assessed any criminal history points for his 1989 conviction for

possession of marijuana and his 1998 conviction for driving while

intoxicated because he received suspended sentences for these

convictions. 

This court has jurisdiction to review a district court’s

denial of a motion for a downward departure only if the district

court denied the motion based upon an error of law. See United

States v. Buck, 324 F.3d 786, 797 (5th Cir. 2003). The record

reflects that the district court denied LeBlanc’s motion to

depart after concluding that the departure was not warranted by

the facts of the case. As such, this court lacks jurisdiction to

review the denial of LeBlanc’s motion for a downward departure. 

See Buck, 324 F.3d at 797.

A district court’s application of the sentencing guidelines

is reviewed de novo, and its findings of fact are reviewed for

clear error. See United States v. Stevenson, 126 F.3d 662, 664

(5th Cir. 1997). The record reflects that the LeBlanc’s

unauthorized operation of the landfill, which began in 1995, was

sufficiently connected to the instant offense to constitute

relevant conduct for sentencing purposes. See U.S.S.G. § 1B1.3;

United States v. Anderson, 174 F.3d 515, 527-28 (5th Cir. 1999). 

As such, LeBlanc’s 1989 conviction for possession of marijuana
No. 04-30577

-3-

was properly included in the calculation of his criminal history

category, since the sentence for that conviction occurred within

ten years of the commencement of the instant offense. See

U.S.S.G. § 4A1.2. 

The record reflects that LeBlanc filed objections to the

presentence report arguing that he should not have been assessed

criminal history points for his prior convictions for which he

received suspended sentences. However, at the sentencing hearing

LeBlanc withdrew these objections. Waiver is the intentional

relinquishment or abandonment of a known right. United States v.

Olano, 507 U.S. 725, 733 (1993). The withdrawal of an objection

constitutes the waiver of the objection by the defendant. United

States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995). As such,

LeBlanc’s argument is unreviewable on appeal. 

Accordingly, LeBlanc’s appeal is DISMISSED in part for lack

of jurisdiction and AFFIRMED in part.