UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-21165
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALBERTO LOPEZ-MURCIA, also known as
CARLOS LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(H-96-CR-124)
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January 2, 1997
Before DAVIS, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Carlos Alberto Lopez-Murcia pled guilty to
possession of heroin with intent to distribute. At his
sentencing hearing, Lopez-Murcia sought a downward departure
under U.S.S.G. § 5K2.12 based upon coercion and duress. 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should not be published and is not precedent except under the limited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.
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district court denied Lopez-Murcia’s request for a downward
departure, sentencing him to fifty-seven months imprisonment.
Appellant argues that the district court erred in denying his
request for a downward departure because it employed an
objective rather a subjective standard in evaluating
appellant’s claims of coercion and duress. We affirm.
I. FACTUAL BACKGROUND
Lopez-Murcia is a citizen of Colombia, and he was a
resident of that country until his arrest in the United
States. At his re-arraignment, Lopez-Murcia told the district
court that while living in Colombia, he entered into a
business venture to sell jewelry. During the course of this
enterprise, jewelry valued at approximately $25,000 was
allegedly stolen from him. Lopez-Murcia’s business “partner,”
Victor Moreno, threatened to murder Lopez-Murcia, his wife, or
his daughter if he did not pay back the value of the jewelry.
Shortly thereafter, Lopez-Murcia was approached by individuals
who offered to pay him to transport drugs into the United
States. Lopez-Murcia stated that he believed the only way to
ensure the physical safety of his family was to transport
drugs in order to pay off his debt to Moreno.
From October 1995 to June 13, 1996 (the day he was
arrested), Lopez-Murcia allegedly made six trips to the United
States. The first two trips were “dry runs.” On the last
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trip, he was arrested by agents of the Drug Enforcement
Agency.
At Lopez-Murcia’s sentencing hearing, the district
court accepted as true all of Lopez-Murcia’s statements about
the threats, coercion, and duress. Lopez-Murcia urged the
court to determine if he was acting under coercion and duress
from his subjective point of view. The district court denied
Lopez-Murcia’s request for a downward departure, concluding
that it was unreasonable for Lopez-Murcia to continue to
traffic drugs for six trips during a period of nine months
without devising some scheme to extricate himself and his
family from the perceived threat.
II. ANALYSIS
We have jurisdiction to review a district court’s
refusal to depart downward from the guidelines only if the
refusal is a violation of the law. See United States v.
Lugman, 1997 WL 730763, at *2 (5th Cir. Nov. 25, 1997); United
States v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997). A
refusal to depart violates the law only if the district court
refuses to grant a downward departure under the mistaken
assumption that it does not have the authority to do so. See
id. We have no jurisdiction if the district court’s refusal
to depart is based upon its factual determination that a
downward departure is unwarranted. See id.
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Section 5K2.12 of the sentencing guidelines states
that the district court “may” depart downward from the
applicable guideline range “[i]f the defendant committed the
offense because of serious coercion, blackmail or duress,
under circumstances not amounting to a complete defense.”
U.S.S.G. § 5K2.12. “The extent of the decrease ordinarily
should depend on the reasonableness of the defendant’s actions
and on the extent to which the conduct would have been less
harmful under the circumstances as the defendant believed them
to be.” Id. Although this circuit has yet to address the
issue of the standard to be applied in evaluating a claim
under U.S.S.G. § 5K2.12, other circuits have held that the
district court should consider the subjective mental state of
the defendant. See, e.g., United States v. Henderson-Durand,
985 F.2d 970, 976 (8th Cir. 1993); United States v. Johnson,
956 F.2d 894, 898 (9th Cir. 1992); see also United States v.
Willis, 38 F.3d 170, 175-76 (5th Cir. 1994) (discussing this
issue in dicta). We review a district court’s legal
interpretation of the guidelines de novo. See United States
v. Adams, 996 F.2d 75, 78 (5th Cir. 1993).
Assuming, without deciding, that subjective
considerations should be taken into account in determining
whether to grant a downward departure under § 5K2.12, we note
that the district court accepted as true Lopez-Murcia’s
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version of events leading to his arrest. That is, the
district court understood the threats, coercion, and duress
upon which Lopez-Murcia based his § 5K2.12 claim to be real.
Nonetheless, the district court found that the causal
connection between Lopez-Murcia’s offense and the coercive
influence he described was too attenuated to grant a downward
departure. The district court believed that Lopez-Murcia
should have extricated himself from his situation at some
point during the nine month period that he trafficked drugs.
We find that the district court considered Lopez-Murcia’s
situation from his subjective point of view and, even from
this favorable viewpoint, concluded that his factual
circumstances did not merit a downward departure. Therefore,
we need not reach the legal issue of whether a defendant’s
subjective mental state should be taken into account under §
5K2.12.
Because the district court was not acting under the
mistaken assumption that it did not have the authority to
grant a downward departure, we lack jurisdiction to review the
district court’s sentencing decision.
AFFIRMED.
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