IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20449 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CURTIS SCOTT,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-643-1 - - - - - - - - - - April 11, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Curtis Scott appeals from his guilty-plea conviction and

sentence for possession with intent to distribute cocaine,

(a)(1) and (b)(1)(B). He argues that the district

court erred by increasing his offense level by two based upon his

managerial role in the offense and by denying his request for a

downward departure. We have reviewed the record and the briefs

of the parties, and we find no reversible error.

The presentence report (PSR) noted that, because of

coconspirator Torrick Henderson’s postarrest statements that he

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-20449 -2-

had transported cocaine for Scott from Houston to Mississippi on

at least eight occasions for a fee of $1,000 per kilogram, Scott

was a manager of this criminal activity, warranting a two-level

increase in his offense level under U.S.S.G. § 3B1.1(c).

Although Scott objected to this offense-level increase, he did

not present rebuttal evidence to refute the PSR’s recommendation

on this issue. Accordingly, the district court was free to adopt

the facts in the PSR without further inquiry, and Scott fails to

show that the court clearly erred by enhancing his sentence based

on his managerial role in the offense. See United States v.

Sherbak,

(5th Cir. 1992).

The court’s ruling on Scott’s request for a downward

departure was not premised on any perceived lack of authority to

grant a downward departure on this basis, but rather the ruling

was an exercise of the court’s discretion. Accordingly, the

district court’s refusal to depart was not a violation of the

law, and the decision is thus unreviewable. See United States v.

Akin,

(5th Cir. 1995).

AFFIRMED.