United States v. Rivera-Duran

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 26, 2002
• Docket: 01-50753
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50753 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIAN RIVERA-DURAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. DR-01-CR-120-1 -------------------- March 25, 2002

Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit Judges.

PER CURIAM:*

Julian Rivera-Duran appeals his sentence following his

conviction for illegal reentry in violation of 8 U.S.C. § 1326.

He argues that the district court erred in denying his motion for

a downward departure. Rivera-Duran asserts that the district

court’s denial of his departure motion was based on an error of

law because the district court stated that it believed it did not

have legal authority to grant the motion.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50753 -2-

The district court originally stated that it did not know of

legal authority that would allow it to grant the departure motion

but later clarified this statement by saying it believed it had

legal authority to grant the motion but declined to do so based

on its interpretation of other cases. Further review of the

record also indicates that the district court was aware of

Rivera-Duran’s specific circumstances.

When a refusal to depart is based on the facts of a

particular case, the appellate court lacks jurisdiction and the

case should be dismissed. See United States v. Lugman, 130 F.3d

113, 115 (5th Cir. 1997). However, the appellate court will

review the decision not to depart if the record indicates the

district court based its decision on an error of law. Id.; see

also United States v. Landerman, 167 F.3d 895, 899 (5th Cir.

1999). Because the record does not indicate that the district

court based its decision on an error of law, this court does not

have jurisdiction and the appeal is DISMISSED.