United States v. Ochoa

Opinion

No. 98-40633 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40633 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ERI OCHOA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. M-97-CR-387-1 - - - - - - - - - - July 20, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Eri Ochoa appeals his sentence for conspiracy to export

defense articles without a license, in violation of 18 U.S.C.

§ 371; 22 U.S.C. § 2778; and 22 C.F.R. §§ 121.1, 123.1, 127.1, and

127.3. Ochoa contends that the district court erred in denying him

a downward departure based on the nature of his prior convictions

and/or on U.S.S.G. § 2M5.2, comment (n.5).

This court lacks jurisdiction to review a defendant’s

challenge to his sentence based upon mere dissatisfaction with the

district court’s refusal to grant a downward departure. United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-40633 -2-

States v. DiMarco, 46 F.3d 476, 477 (5th Cir. 1995). Jurisdiction

will lie only if the sentencing court’s refusal to depart downward

was the result of a violation of law or a misapplication of the

sentencing guidelines. Id. A refusal to depart downward is a

violation of law only if the court mistakenly assumed that it

lacked the authority to depart. United States v. Burleson, 22 F.3d

93, 94-95 (5th Cir. 1994). A refusal to grant a departure is an

incorrect application of the sentencing guidelines only if the

court committed an error that resulted in the selection of a

sentence from the wrong guideline range. See United States v.

Williams, 503 U.S. 193, 202-203 (1992).

Following a careful review of the record and the arguments on

appeal, we hold that the district court neither misapprehended its

authority to depart from the guidelines nor selected a sentence

from the wrong guideline range. Accordingly, this court lacks

jurisdiction to review the district court’s refusal to grant Ochoa

a downward departure. DiMarco, 46 F.3d at 477.

APPEAL DISMISSED.