868 F.2d 807 (5th Cir. 1989), 88-5584, United States v. Mejia-Orosco

Docket Nº:88-5584.
Citation:868 F.2d 807
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Juventino MEJIA-OROSCO, Defendant-Appellant.
Case Date:March 31, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 807

868 F.2d 807 (5th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Juventino MEJIA-OROSCO, Defendant-Appellant.

No. 88-5584.

United States Court of Appeals, Fifth Circuit

March 31, 1989

Page 808

Alfredo Villarreal, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Everberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

ON PETITION FOR REHEARING

(Opinion Feb. 17, 1989, 5th Cir., 1989, 867 F.2d 216)

Before CLARK, Chief Judge, HIGGINBOTHAM, Circuit Judge, and LITTLE [*], District Judge.

PER CURIAM:

On petition for rehearing, Mejia-Orosco correctly points out that 18 U.S.C. Sec. 3742(d), now renumbered Sec. 3742(e), was amended in November of 1988 by the Anti-Drug Abuse Act of 1988. See P.L. 100-690, reprinted in 1988 U.S.Code Cong. & Admin.News at 102 Stat. 4181, 4417. Neither side reported this amendment in its briefs, or at oral argument. However, the amendment supports our original opinion, to which we adhere.

Prior to November 18, 1988, section 3742(d) stated, in part, that the "court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous." United States v. Mejia-Orosco, 867 F.2d 216, 218 (5th Cir.1989). The November amendment renumbers the section, and adds to the end of the phrase just quoted, "and shall give due deference to the district court's application of the guidelines to the facts."

This amendment reinforces the approach we adopted in our original disposition of this case. The amendment reaffirms that Congress intends to protect the judgment of the district courts. As we stated earlier, "sentencing under the guidelines is not ... an exact science. Justice cannot be meted out according to mathematical formulas.... The sentencing guidelines are not intended to cover all contingencies or rigidly bind district judges." Mejia-Orosco, 867 F.2d at 219.

Mejia-Orosco, however, contends that the amendment bars us from using the clearly erroneous standard to review the district court's determination of manager status. He would have us develop a separate...

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