IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41313
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE RODRIGUEZ-DE LA CRUZ,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-98-CR-297-1
- - - - - - - - - -
June 15, 1999
Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Rene Rodriguez-De La Cruz appeals his sentence for illegal
entry after deportation, in violation of 8 U.S.C. § 1326. He
contends that the district court abused its discretion by denying
him a downward departure pursuant to U.S.S.G. § 2L1.2, comment.
(n.5).
We lack jurisdiction to review a defendant’s challenge to
his sentence based upon mere dissatisfaction with the court’s
*
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that this opinion should not be published and is not precedent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. 98-41313
-2-
refusal to grant a downward departure. United States v. DiMarco,
46 F.3d 476, 477 (5th Cir. 1995). A refusal to depart downward
is a violation of law only if the district court mistakenly
assumed that it lacked the authority to depart. United States v.
Burleson, 22 F.3d 93, 95 (5th Cir. 1994).
After reviewing the transcript from the sentencing hearing
and the arguments on appeal, we find that the district court did
not misapprehend its authority to depart but that, instead, its
refusal to depart was an exercise of discretion which this court
lacks jurisdiction to review on appeal. DiMarco, 46 F.3d at 477.
APPEAL DISMISSED FOR LACK OF JURISDICTION.