United States v. Avalos-Cervantes

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 20, 1999
• Docket: 98-40896
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 98-40896 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELADIO AVALOS-CERVANTES,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (B-98-CR-246-1) _________________________________________________________________

July 20, 1999

Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.

PER CURIAM:*

In this case, Eladio Avalos-Cervantes argues that the district

court erred when it refused a downward departure in his sentencing.

The government argues that, because the downward departure was

discretionary and the district court did not indicate that it

lacked authority to make the departure, we do not have jurisdiction

to review Avalos’s appeal. We agree with the government and

therefore dismiss the appeal.

On May 6, 1998, Avalos pled guilty to charges under 8 U.S.C.

§ 1326(a) and (b) of illegally entering the country without the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. permission of the Attorney General after having been deported. The

presentencing report concluded that his base offense level was 8

and that 16 levels should be added pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A), because Avalos had been deported after being

convicted of possession of cocaine and sentenced to eight years in

prison.1

During the sentencing hearing, Avalos moved for a downward

departure under note 5 of the comment to § 2L1.2 of the Sentencing

Guidelines:

Aggravated felonies that trigger the [16-level] adjustment [under § 2L.2(b)(A)] vary widely. If subsection (b)(1)(A) applies and (A) the defendant has previously been convicted of only one felony offense; (B) such offense was not a crime of violence or firearms offense; and (C) the term of imprisonment imposed for such offense did not exceed one year, a downward departure may be warranted based on the seriousness of the aggravated felony.

The district court denied the motion.

Avalos’s sole argument is that the district court erred in

refusing to grant a downward departure pursuant to note 5. Avalos

argues that the district court erred by concluding that the

downward departure did not apply to him because he had been

sentenced to a probationary period of eight years. The law is

unclear with respect to whether a probationary sentence should

count as “a term of imprisonment” under this note.

1 The eight year prison sentence was suspended and Avalos was placed on probation for eight years.

2 With respect to Avalos’s argument, however, we first must find

that we have jurisdiction to hear this case. We have jurisdiction

to review a defendant’s challenge to a sentence only if it was

imposed in violation of law; was imposed as a result of a

misapplication of the sentencing guidelines; was the result of an

upward departure; or was unreasonably imposed for an offense not

covered by the sentencing guidelines. United States v. DiMarco, 46

F.3d 476, 477 (5th Cir. 1995) (citing 18 U.S.C. § 3742). “The

imposition of a lawful sentence coupled with the decision not to

depart from the guidelines provides no ground for relief.” Id.

(citing United States v. Miro, 29 F. 3d 194, 198-99 (5th Cir.

1994)). Jurisdiction will lie only if the sentencing court’s

refusal to depart downward was the result of a violation of law or

misapplication of the Guidelines. Id. A refusal to depart

downward is a violation of law only if the court mistakenly assumed

that it lacked authority to depart. United States v. Burleson, 22

F.3d 93, 95 (5th Cir. 1994).

Avalos argues that the district court’s refusal to grant the

downward departure was the result of a misapplication of the

guidelines. He contends that the district court denied his motion

on the ground that his prior conviction for possession of one and

a half grams of cocaine--for which his eight-year sentence was

suspended--was an aggravated felony with a term of imprisonment

imposed that exceeded one year. Although the government made this

argument at the sentencing hearing, there is nothing in the record

3 to indicate that the district court denied the motion on that

basis.

In United States v. Landerman, we stated:

We have jurisdiction to review a district court's decision not to depart downward from the guideline range only if the district court based its decision upon an erroneous belief that it lacked the authority to depart. See United States v. DiMarco, 46 F.3d 476, 478 (5th Cir. 1995). Moreover, something in the record must indicate that the district court held such an erroneous belief. See United States v. Willey, 57 F.3d 1374, 1392 n.32 (5th Cir.1995).

167 F.3d 895, 899 (5th Cir. 1999). In the case at hand, although

it is certainly plausible that the district court believed it did

not have authority to depart because it concluded that part (C) of

the comment was not satisfied, there is nothing in the record to

support this conclusion. Based on our precedent, we cannot

conclude that the district court believed it was acting without

authority without some signal from the district court to that

effect. For that reason, we do not have jurisdiction to hear this

case.

Our Circuit has established a default rule with respect to

discretionary downward departures that, if the district court does

not indicate a belief that it lacks authority to depart from the

guidelines, we must assume that the district court is acting within

its discretion in refusing to depart. Because that is the case

here, we do not have jurisdiction to review the current appeal and

must therefore dismiss it.

D I S M I S S E D.

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