* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-60070

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN D. JACKSON, JR.,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

(1:93-CR-60-BrR)

_________________________________________________________________

March 7, 1996

Before BARKSDALE, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

John D. Jackson, Jr., challenges his sentence on two grounds,

both of which are being raised for the first time on appeal. Not

finding plain error, we AFFIRM.

I.

In November 1993, Jackson was indicted for conspiracy to

possess with intent to distribute cocaine base and possession with

intent to distribute cocaine base. He pleaded guilty to the

conspiracy count in August 1994. The plea agreement provided,

inter alia, that the Government would recommend that the court

impose a sentence within the bottom half of the applicable
1 The agreement provided also that "the maximum possible penalty

that may be imposed is 10 years mandatory minimum imprisonment and

a $4,000,000 fine and a term of supervised release of 5 years

minimum". At the sentencing hearing, the district court indicated

that this statement was "probably a typographical error", because

10 years was the mandatory minimum; the Government agreed.

Moreover, when testifying in support of his motion to withdraw the

plea or for specific performance, Jackson acknowledged that, when

he entered the plea, he understood that the maximum possible

penalty was life imprisonment.

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guideline range, inform it of the extent of Jackson's cooperation,

and request that it consider that cooperation in determining his

sentence.1 The agreement provided further that the Government

reserved the right to move for downward departure pursuant to

U.S.S.G. § 5K1.1. After conducting a hearing in accordance with

FED. R. CRIM. P. 11, the district court accepted Jackson's plea.

Prior to sentencing, and represented by new counsel, Jackson

moved to withdraw his plea or, in the alternative, for specific

performance. He asserted in the motion that the Government had

informed him that it intended to recommend a downward departure to

120 months imprisonment, in violation of its alleged promise in the

plea agreement to recommend that he receive a maximum sentence of

10 years and "then by application of the guidelines ... be given

credit for certain downward departures from the 120 months,

depending upon his cooperation, acceptance of responsibility,

relevant conduct, criminal history background, and other matters

under said guidelines".

The district court conducted an evidentiary hearing on the

motion immediately preceding sentencing. It asked Jackson whether

he would prefer to withdraw his guilty plea or to receive a
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sentence which would be "capped at 10 years", and Jackson responded

that he would prefer to receive "the cap at 10 years with the

downward departure". After testimony by Jackson and his wife, the

court sustained Jackson's motion "insofar as [Jackson's]

interpretation of [the plea agreement] is concerned ... [that

Jackson] be sentenced to 10 years". The court determined that

Jackson's base offense level was 35, which included a three-level

upward adjustment for his role in the offense and a two-level

downward adjustment for acceptance of responsibility, with a

guideline imprisonment range of 168 to 210 months. 

The Government moved for a downward departure, pursuant to §

5K1.1, and the district court sentenced Jackson to 120 months

imprisonment. Jackson did not object after the court imposed

sentence.

II.

Contending that his sentence should be vacated and the case

remanded for resentencing, Jackson presents two bases in support:

the district court erred by allegedly determining that it had no

authority to depart below the mandatory minimum sentence; and it

violated due process by not allowing him to present argument and

evidence to refute the presentence report (PSR). But, he did not

raise either issue in the district court; accordingly, the plain

error standard of review applies.

Under that standard, we have discretion to correct errors that

are plain ("clear" or "obvious") and affect substantial rights.

United States v. Olano, 507 U.S. 725, ___, 113 S. Ct. 1770, 1777-79
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(1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.)

(en banc), cert. denied, ___ U.S. ___, 115 S. Ct. 1266 (1995).

And, in exercising that discretion, we "should correct a plain

forfeited error affecting substantial rights if the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings". Olano, 507 U.S. at ___, 113 S. Ct. at 1779 (internal

quotation marks, brackets, and citation omitted).

A.

When the Government moves for a § 5K1.1 downward departure,

the court is not bound to impose the sentence recommended by the

Government, and it has the discretion to depart below the statutory

mandatory minimum sentence. See United States v. Alvarez, 51 F.3d

36, 41 (5th Cir. 1995) ("although the Guidelines and the Sentencing

Reform Act determine the validity of a district court's decision

whether to depart, the decision as to the extent of the departure

is committed to the almost complete discretion of the district

court"); United States v. Beckett, 996 F.2d 70, 75 (5th Cir. 1993)

(when prosecution moves for § 5K1.1 downward departure, based on

defendant's substantial assistance, district court is authorized to

depart below mandatory minimum sentence). 

Jackson contends that the court misapplied § 5K1.1 because it

erroneously considered itself bound by the statutory mandatory

minimum sentence, as requested by the Government. See United

States v. Johnson, 33 F.3d 8, 9-10 (5th Cir. 1994) (vacating

sentences and remanding for resentencing where record left open the

question whether the sentencing court, as a matter of policy, bound
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itself to accept the Government's recommendation on downward

departure).

On the other hand, the sentencing hearing transcript does not

support this claim. After Jackson's counsel disputed Jackson's

accountability for 24 kilograms of cocaine, the court stated,

"[b]ut if he's sentenced for 10 years ... then it would become a

moot issue"; Jackson's counsel agreed. The court then stated:

I'm inclined to sentence him to 10 years. Now

having told you that, do you wish to make an

issue of the amount of the supervisory role

that he played because I don't see that that

would have any bearing on the issue at that

point because there's a 10 year mandatory

minimum in this case.

Jackson's counsel agreed: "I do concede and I concur with the

Court that if that's the Court's position, 10 years, then yes, that

would not be an issue". These comments were made before the

Government moved for a downward departure. They do not reflect a

misunderstanding about the court's discretion to depart below the

mandatory minimum; instead, they reflect its belief, in which

Jackson concurred, that adjustments to the sentencing range, which

far exceeded 10 years, would be irrelevant if the court departed

downward to a sentence of 10 years.

Jackson's counsel then requested a downward departure below 10

years, based on Jackson's diminished capacity, his health, and his

substantial assistance to the Government. The following colloquy

occurred:

THE COURT: That would be something,

Counselor, as I understand the memorandum of

understanding, that may come later.
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[JACKSON'S COUNSEL]: Yes, sir, I understand.

THE COURT: In the form of some motion.

[JACKSON'S COUNSEL]: Yes, sir, Judge.

THE COURT: Would not impact my sentence

today.

[JACKSON'S COUNSEL]: I understand, Your

Honor.

These comments reflect the court's understanding that, if a 10-year

sentence were imposed, it could be reduced further, as the result

of a motion pursuant to FED. R. CRIM. P. 35. Jackson's counsel

appears to have agreed with that understanding; in any event, there

was neither an objection nor an attempt to clarify any

misunderstanding.

None of the district court's comments at sentencing can be

construed as indicating that it felt it lacked discretion to depart

below the statutory mandatory minimum sentence requested by the

Government. Although the court did not state expressly that it had

such authority, we will not infer otherwise from its silence.

Accordingly, this issue fails the very first step of plain error

analysis -- that there be an error.

B.

Jackson maintains also that the court violated his right to

due process at sentencing when it suggested to counsel that any

objections to the PSR would be irrelevant, and then later made

specific fact findings without giving him an opportunity to rebut

the PSR. There is no plain error; the court did not prevent

Jackson from presenting arguments or testimony in support of his
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objections to the PSR. Prior to ruling on Jackson's motion to

withdraw his plea or for specific performance, the court asked

Jackson if he wished to bring to its attention other matters

pertaining to the PSR or that would impact sentencing. Jackson's

counsel responded:

Judge, we stand by our notice of factual

disputes with the PS[R] investigation. We

will stick on that and our memorandum that

goes with it, Your Honor.

III.

For the foregoing reasons, the judgment is

AFFIRMED.