*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opinion should not be published and is not precedent except under the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

FOR THE FIFTH CIRCUIT

_____________________

No. 97-40772

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee/Cross-Appellant,

versus

POLLA DENICE THOMAS,

Defendant-Appellant/Cross-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(6:95-CR-52-1)

_________________________________________________________________

February 15, 1999

Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

Polla Denise Thomas appeals her convictions for three counts of

possession of a controlled substance with intent to distribute. 

A.

Following Thomas’ conviction at her first trial, the district

court ordered a new trial because of an improper prosecutorial

argument. Thomas contends that she is entitled to a third trial

because counsel at her second trial was ineffective for failing to

call her husband, Melvin Thomas, as a witness or to offer his

testimony from her first trial pursuant to FED. R. EVID. 804.
- 2 -

At the first trial, Melvin Thomas testified that he was a drug

dealer, but that his wife was not aware of his illegal activities.

He asserted that his wife was innocent; and that the drugs found in

her suitcase had been placed there without her knowledge by one of

his co-conspirators. Polla Thomas had different counsel at her

second trial.

We can address this direct appeal ineffective assistance of

counsel contention, because the issue was the subject of a hearing in

district court, initiated by Thomas’ new counsel appointed after

trial but before sentencing; and the parties agree that the record is

adequate for our resolution of this issue. See United States v.

Haese, 162 F.3d 359, 363 (5th Cir. 1998).

Having reviewed the records of both trials and the briefs of the

parties, we reject Thomas’ ineffective assistance of counsel

contention. A reasonable attorney either could have concluded that

the purportedly exculpatory testimony at the first trial was, when

viewed as a whole, so implausible that it weakened Thomas’

explanations of her innocence, or could have doubted the veracity of

the exculpatory testimony. See Nix v. Whiteside, 475 U.S. 157, 166-

69 (1986); see also Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir.

1988).

Because Thomas did not call either her trial counsel or her

husband to testify at the hearing on her allegations of ineffective

assistance of counsel, she has failed to establish facts showing that

counsel’s failure to offer her husband’s evidence rendered her second

trial fundamentally unfair. Strickland v. Washington, 466 U.S. 668,
- 3 -

689 (1984); see also United States v. Guerra, 628 F.2d 410, 413 (5th

Cir. 1980), cert. denied, 450 U.S. 934 (1981).

B.

The Government contends on cross-appeal that the district court

abused its discretion by departing downward at sentencing based on

Thomas’ allegedly aberrant conduct, lack of prior criminal record,

two minor children, and education and employment history. The record

does not support the district court’s determination that Thomas’

offense constituted aberrant behavior; therefore, that determination

was an abuse of discretion. See United States v. Williams, 974 F.2d

25, 26-27 (5th Cir. 1992), cert. denied, 507 U.S. 934 (1993).

Because Thomas’ sentence was calculated under Criminal History

Category I of the Sentencing Guidelines, the district court erred by

departing downward based on her lack of prior criminal history. See

U.S.S.G. § 4A1.3. The record contains no evidence of any exceptional

circumstances that would support a downward departure based on

Thomas’ family circumstances and educational and employment history.

United States v. Winters, 105 F.3d 200, 205 (5th Cir. 1997).

For the foregoing reasons, we AFFIRM Thomas’ convictions, VACATE

her sentence, and REMAND for re-sentencing.

AFFIRMED in part; VACATED and REMANDED in part