* 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this opinion should not be published and is not precedent except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. 95-10282

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GEORGE ORELLANA,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Northern District of Texas

(3:94-CR-348-T)

______________________________________________

February 21, 1996

Before GARWOOD, EMILIO M. GARZA and DeMOSS, Circuit Judges.

PER CURIAM:*

Defendant-appellant George Orellana appeals his sentence for

illegal possession of social security documents and bribery of a

United States official, offenses to which he had pleaded guilty.

Orellana’s only contention on appeal is that the district

court, in downwardly departing from the U.S.S.G. guideline range on

the basis of the Government’s motion under U.S.S.G. § 5K1.1 for

downward departure based on Orellana’s substantial assistance,
 

1Indeed, Orellana never clearly requested the district court

to grant a greater downward departure under section 5K1.1 than that

recommended by the Government.

 

2Especially as to the latter two, this assumption may well be

something of a stretch.

2

failed to independently determine the extent of the appropriate

section 5k1.1 departure but instead merely accepted the

Government’s recommendation that the downward departure be one

guideline offense level, contrary to United States v. Johnson, 33

F.3d 36, 41 (5th Cir. 1994). As the Government urges, and as

Orellana concedes in his brief and at oral argument, this

contention was not raised below and may be reviewed only under the

plain error doctrine.1 See United States v. Calverley, 37 F.3d 160

(5th Cir. 1994); United States v. Vontsteen, 950 F.2d 1086, 1091

(5th Cir.), cert. denied, 112 S.Ct. 3039 (1994); United States v.

Garcia-Pillado, 898 F.2d 36 (5th Cir. 1990).

We assume, arguendo, that the first three requirements of

plain error review are met, viz: that there was error, that it was

plain and that it to some extent affected Orellana’s’s substantial

rights.2 Upon finding these three elements satisfied, an appellate

court has discretion to grant relief, and that discretion should be

exercised favorably to the appellant “only if” the forfeited error

“seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings.” Calverley, at 164. Exercising our

discretion under this standard, we conclude that this is an

inappropriate case in which to grant relief.

Orellana received a 24-month sentence. Calculated correctly

under the guidelines, his adjusted base offense level was 18 and
3 The statutory maximum for the offenses was 20 years.

4 Orellana’s cooperation resulted in his sister’s pleading

guilty; defendants in the other three related cases pleaded guilty

without regard to his cooperation. We cannot say that there is

anything unreasonable or unusual about only departing one level

under section 5K1.1 in these circumstances.

5 Orellana also urged that “he has taken that first step to

rehabilitation, accepting responsibility for his acts.”

3

his criminal history category was I, which produced a guidelines

confinement range of 27 to 33 months. The Government’s section

5K1.1 motion suggested that the requested downward departure be by

one offense level, which would produce an adjusted base offense

level of 17, and a guideline range of 24 to 30 months. Had a twooffense level downward departure been granted, the guideline range

would have been 21 to 27 months; had a three-offense level downward

departure been granted, the guideline range would have been 18 to

24 months.3 Cf. Garcia-Pillado at 39. There was never any dispute

concerning the nature, extent or results of Orellana’s substantial

assistance, nor any concerning the facts relevant to the

considerations listed in section 5K1.1(a).4 The principal thrust

of Orellana’s sentencing presentation related to his clean record,

good character and status as a hard-working, church-attending

person who supported his family and was involved in the offenses as

a result of severe financial pressure to pay for a serious

operation that his father required and to have funds for medical

expenses for his mother’s heart condition, which would require

surgery.5 These are the factors——not factors properly relevant to

determining the extent of departure under section 5K1.1(a)——which

appear to have motivated the district court’s remarks at sentencing
4

that “Mr. Orellana, let me assure you that you have touched my

heart” and “I firmly believe that Mr. Orellana is a good person”.

Exercising our discretion, we decline to grant relief as to

the forfeited claim of error. Orellana’s conviction and sentence

are therefore

AFFIRMED.