*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this opinion should not be published and is not precedent except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. 97-20978

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

Nicholas SANCHEZ

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Texas

(H-89-CR-411-4)

 

February 23, 1999

Before HIGGINBOTHAM, JONES and DENNIS, Circuit Judges.

PER CURIAM:*

In March 1990, Sanchez was convicted by a jury of the

following offenses: conspiracy to aid and abet in the possession

with the intent to distribute cocaine (count one); aiding and

abetting the possession of cocaine with the intent to distribute

(count three); and money laundering (count four). He was sentenced

to 324 months of imprisonment for count one and three, and 240

months for count four, to run concurrently. Sanchez’s conviction

on count four was reversed on appeal, and he was resentenced in

1992 to 324 months of imprisonment for counts one and three. 
2

In March 1997, Sanchez filed a motion under § 2255 alleging

that count one did not state an offense against the United States,

his trial and appellate counsel were ineffective for failing to

raise the issue, and his appellate counsel was ineffective for

failing to tell him of his right to appeal after resentencing. The

district court allowed Sanchez to file an out-of-time appeal of his

resentencing but denied the motion in all respects otherwise.

Sanchez then filed a notice of appeal raising two arguments. 

Sanchez’s first argument is that the indictment against him

was insufficient because there is no such crime as “conspiracy to

aid and abet” in the context of drug-trafficking offenses. Sanchez

raises this argument for the first time on appeal after his

resentencing. A claim that an indictment is so deficient as to

deprive the convicting court of jurisdiction is an issue that is

cognizable under a § 2255 motion. United States v. Prince, 868

F.2d 1379, 1383 (5th Cir. 1989). However, when such a claim is

raised for the first time in a § 2255 habeas petition, the

appellate court can “consider the challenge only in exceptional

circumstances." Id. at 1384. Furthermore, the indictment is

entitled to liberal review in favor of the government and will be

held sufficient if "by any reasonable construction" it is

understood to charge an offense. Id.

Here, the indictment can easily be understood essentially to

charge the offenses of conspiracy and possession. In fact, the

jury instructions addressing counts one and three only outlined the

definitions of conspiracy and possession without mention of “to aid
3

and abet.” Likewise, the original judgment and the one after the

resentencing both recite that Sanchez was adjudged guilty of

“conspiracy to possess with intent to distribute . . .” and not

conspiracy to aid and abet the distribution of cocaine. 

Despite the wording of the indictment, it appears as though

Sanchez was convicted of conspiracy to possess with the intent to

distribute cocaine and with possession of cocaine; both are valid

counts in an indictment. We find that Sanchez’s challenge

regarding the sufficiency of his indictment does not rise to the

level of “exceptional circumstances” necessary to sustain a

challenge. 

Sanchez’s second argument is that the district court violated

the Due Process and Double Jeopardy Clauses by failing to depart

downwardly at the resentencing hearing after his conviction on

count four was reversed. The district court’s decision not to

depart downward was based upon its determination that departure was

not warranted on the facts of Sanchez’s case. Therefore, this

court lacks jurisdiction to review Sanchez’s second argument. See

United States v. Lugman, 130 F.3d 113, 115 (5th Cir. 1997) (holding

trial court’s decision to refuse downward departure may not be

reviewed if refusal was based trial court’s determination that

departure is not warranted on the facts of the case).

Accordingly, Sanchez’s argument that the indictment was

insufficient is DENIED, and his argument about downward departure

is DISMISSED for lack of subject-matter jurisdiction.