IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40978 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO GOMEZ-GUERRERO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-215-ALL -------------------- October 29, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Mario Gomez-Guerrero appeals the 84-month sentence imposed

by the district court following his conviction on a plea of

guilty to a charge of illegal reentry to the United States

following deportation. Gomez-Guerrero contends that he was

denied due process because the Government knew that he was in

state custody and did not indict him at the earliest possible

time. Gomez-Guerrero asserts that the district court erred by

denying him a downward departure based on his due process claim.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40978 -2-

Gomez-Guerrero cannot establish a due process violation

because he has not alleged that the pre-indictment delay was

intentionally undertaken by the Government to gain “some tactical

advantage . . . in the contemplated prosecution or for some other

impermissible, bad faith purpose.” United States v. Crouch,

(5th Cir. 1996) (en banc). Further, we may not

review the district court’s refusal to grant a downward departure

because the record does not indicate that the district court

believed that it lacked the authority under the Sentencing

Guidelines to downwardly depart. United States v. Wilson,

(5th Cir. 2001). Accordingly, the judgment of the

district court is AFFIRMED.