United States v. Trevino

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2002
• Docket: 01-41464
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41464 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO TREVINO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-99-CR-263-1 -------------------- August 20, 2002 Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

Mario Trevino appeals his sentence following his guilty plea

conviction of one count of possession of 6,704 grams of

methamphetamine with intent to distribute. He argues that the

district court abused its discretion when it refused to grant him

a downward departure at sentencing based on the alleged low

purity of the methamphetamine and based on his mistaken belief

that the contraband he possessed was marijuana.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41464 -2-

This court lacks jurisdiction to review a defendant’s

challenge to his sentence based on mere dissatisfaction with the

court’s refusal to grant a downward departure, unless the court’s

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

of the Guidelines. United States v. DiMarco, 46 F.3d 476, 477

(5th Cir. 1995). A refusal to depart is a violation of law if

the court mistakenly believed that it lacked the authority to

depart. United States v. Burleson, 22 F.3d 93, 95 (5th Cir.

1994).

The record does not show that the district court’s refusal

to grant his requested downward departures was based on a

mistaken belief that it could not do so. Rather, the district

court based its decision on its belief that the requested

departures were not appropriate. Because the district court did

not misapprehend its authority under the Sentencing Guidelines,

we lack jurisdiction to hear this appeal. Id. Accordingly,

Trevino’s appeal is DISMISSED.