* 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this opinion should not be published and is not precedent except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. 97-30694 

 

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

TROY DOUGLAS ALLEN

Defendant-Appellant

 

Appeal from the United States District Court

For the Middle District of Louisiana

(96-CR-73-ALL)

 

April 16, 1998

Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Troy Douglas Allen appeals his conviction for striking and

causing bodily injury to two inmates in violation of 18 U.S.C.

§242. We reject his claims of error and AFFIRM the conviction. We

also VACATE the sentence and REMAND for sentencing anew.

I.
2

Allen’s main contention is that the government failed to

disclose information about the two victims, Ponthieux and Rini, who

testified against him. On the state of this record we are not

persuaded that any undisclosed information was material. Allen is

unable to either demonstrate the admissibility of the information

or to articulate any line of defense that it might have opened up.

The information not disclosed before trial included evidence

that Ponthieux had lied regarding his participation in certain sex

acts with other inmates. The complete record discloses this lie,

but put in context, it loses its sting. Ponthieux also had

explained that he had been put in lockdown for five days before he

agreed to give a statement; a statement he promptly recanted to

other prison officials on his release from lockdown. The complete

story injures Allen’s Brady claim in two ways. First, it has a

back edge with its evidence of mistreatment by prison guards.

Second, developing the full context of the statement would have

taken the trial into a collateral matter such that the district

court cannot be faulted for deciding it would not have been

admitted.

The information that Rini had earlier made a false charge

against a guard suffers from similar fault. The record is far more

equivocal. At best, it established that a previous claim that a

guard had used excessive force against him by grabbing him by the

neck was determined to not have been established. The factual

basis of the rejection was that the injury to Rini’s neck was
3

inconsistent with his having been choked, as he claimed. The

difficulty is that was not Rini’s claim. This undisclosed

information was not as clear cut as Allen now urges. It would have

been of dubious value to the defense and would have required a side

trial of the earlier charge.

The evidence against Allen was compelling. Ponthieux

suffered severe injuries requiring surgery and extensive care. The

surgeon testified that the injuries could not have been selfinflicted and were consistent with being hit by a round object such

as a fist while lying flat on a bed or against a wall. This is in

the teeth of the speculative defensive theory that the inmates were

fighting among themselves and contrived the charges to avoid

punishment. Immediately after Allen left for the day, Ponthieux

told the incoming guard, Sergeant Oscar Coney, about the beating.

Nurse Scott testified that there had been no fights between the

young inmates on that day; that when she saw the injuries of Rini

and Ponthieux, they said that Allen had beaten them. In short, the

government’s case against Allen was compelling. We can find no

reversible error in the failure to disclose Allen complains of

here.

II.

The government concedes that the district court erred in

ruling that it lacked authority to depart downward on the

combination of factors urged by Allen. We are unsure whether the
4

district court would have done so with a correct view of the law.

We must then vacate the sentence and remand the case to the

district court for sentencing anew. We do not suggest that the

district court must impose a different sentence, only that the

sentence must flow from a correct view of the range of discretion

to be exercised. This hair splitting is a price of the sentencing

guideline regime.

The judgment of conviction is AFFIRMED. The sentence is

VACATED and the case is REMANDED for sentencing anew.

AFFIRMED in part and VACATED and REMANDED in part.