Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Douglas Fleming, Defendant-appellant, 924 F.2d 1059 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 924 F.2d 1059 (6th Cir. 1991) Feb. 4, 1991

Before BOYLE F. MARTIN, Jr. and BOGGS, Circuit Judges, and ENGEL, Senior Circuit Judge.


ORDER

Douglas Fleming, a federal prisoner, appeals the sentence imposed by the district court following his guilty plea conviction. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a). In addition, counsel for all parties have waived oral argument in this case.

Pursuant to an oral plea agreement, Fleming pleaded guilty to one count of aiding and abetting in the use of a communications facility to dispense controlled substances in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. He was sentenced to 11 months imprisonment.

At sentencing, the parties agreed that the applicable sentencing guideline range was six to twelve months. In accordance with the plea agreement, the government then made an oral motion for a downward departure pursuant to U.S.S.G. Sec. 5K1.1. The district court adopted the government's motion and sentenced Fleming to eleven months incarceration. Fleming has filed a timely appeal. He asserts that based upon the government's substantial assistance motion his sentence should either be below the sentencing guideline range or at the low end of the guideline range.

Upon review, we affirm the district court's judgment. The sentence imposed by the district court does not constitute an abuse of discretion. See United States v. Castellanos, 904 F.2d 1490, 1497 (11th Cir. 1990). In this instance, the sentencing judge sentenced the defendant within the guideline range.

Accordingly, the district court's judgment is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.