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that this opinion should not be published and is not precedent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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-10349

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANNY D. MEISTER,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:97-CR-120-1-G

- - - - - - - - - -

October 21, 1998

Before POLITZ, Chief Judge, and WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Danny Meister appeals his sentence following a conviction

for money laundering. He argues that the district court abused

its discretion by not granting him a downward departure based on

the fact that his crime, although technically money laundering,

was more similar to fraud. He argued that this brought his case

out of the “heartland” of money-laundering cases and requested

that the district court depart from the guidelines by calculating

his sentence guideline range under the fraud guideline.
No. 98-10349

-2-

Meister argues that this issue has become “wholly

reviewable” by this court after the decision in Koon v. United

States, 518 U.S. 81 (1996). This claim, however, is unavailing

even under Koon. Two questions are considered by this court in

reviewing a failure to depart downward. If the district court’s

decision involves a determination whether U.S.S.G. § 5K2.0, p.s.,

applies, this is a question of law that is reviewed for abuse of

discretion. United States v. Lugman, 130 F.3d 113, 115 (5th Cir.

1997), citing Koon, 518 U.S. at 98-99. If downward departure is

possible, the determination whether the facts of the case warrant

such a departure will be due substantial deference to the

district court’s discretion. Lugman, 130 F.2d at 115, citing

Koon, 518 U.S. at 98.

Koon’s requirement of “substantial deference” means that

this court will review a district court’s refusal to grant a

downward departure only if the refusal was based on a violation

of the law. United States v. Palmer, 122 F.3d 215, 222 (5th Cir.

1997), citing United States v. Mitchell, 964 F.2d 454, 462 (5th

Cir. 1992). We have jurisdiction only if the district court

concluded in error that the Guidelines did not permit such a

departure. Palmer, 122 F.3d at 222. This rule recognizes that

“review even for abuse of discretion, might become a chance to

second-guess the district court.” Lugman, 130 F.3d at 115.

The district court considering Meister’s request for a

downward departure stated that the issue was difficult, but that

it was unpersuaded that it should exercise discretion in favor of

a downward departure in this case. The district court did not
No. 98-10349

-3-

deny the motion because of a mistaken belief that it could not

depart under the law. Palmer, 122 F.2d at 222. Instead, the

court recognized that it had the power to grant a downward

departure, but that such a step was not called for by the facts

of this case. Because the factual findings of a district court

are due extreme deference in the area of departures from the

Sentencing Guidelines and because the district court denied the

departure based on the facts of Meister’s case, this court does

not have the power to review the district court’s decision on the

issue. The sentence of the district court is AFFIRMED.