IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-40896
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELADIO AVALOS-CERVANTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(B-98-CR-246-1)
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July 20, 1999
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.
PER CURIAM:*
In this case, Eladio Avalos-Cervantes argues that the district
court erred when it refused a downward departure in his sentencing.
The government argues that, because the downward departure was
discretionary and the district court did not indicate that it
lacked authority to make the departure, we do not have jurisdiction
to review Avalos’s appeal. We agree with the government and
therefore dismiss the appeal.
On May 6, 1998, Avalos pled guilty to charges under 8 U.S.C.
§ 1326(a) and (b) of illegally entering the country without 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this opinion should not be published and is not precedent except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.
permission of the Attorney General after having been deported. The
presentencing report concluded that his base offense level was 8
and that 16 levels should be added pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A), because Avalos had been deported after being
convicted of possession of cocaine and sentenced to eight years in
prison.1
During the sentencing hearing, Avalos moved for a downward
departure under note 5 of the comment to § 2L1.2 of the Sentencing
Guidelines:
Aggravated felonies that trigger the [16-level]
adjustment [under § 2L.2(b)(A)] vary widely. If
subsection (b)(1)(A) applies and (A) the defendant has
previously been convicted of only one felony offense; (B)
such offense was not a crime of violence or firearms
offense; and (C) the term of imprisonment imposed for
such offense did not exceed one year, a downward
departure may be warranted based on the seriousness of
the aggravated felony.
The district court denied the motion.
Avalos’s sole argument is that the district court erred in
refusing to grant a downward departure pursuant to note 5. Avalos
argues that the district court erred by concluding that the
downward departure did not apply to him because he had been
sentenced to a probationary period of eight years. The law is
unclear with respect to whether a probationary sentence should
count as “a term of imprisonment” under this note.
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The eight year prison sentence was suspended and Avalos was
placed on probation for eight years.
2
With respect to Avalos’s argument, however, we first must find
that we have jurisdiction to hear this case. We have jurisdiction
to review a defendant’s challenge to a sentence only if it was
imposed in violation of law; was imposed as a result of a
misapplication of the sentencing guidelines; was the result of an
upward departure; or was unreasonably imposed for an offense not
covered by the sentencing guidelines. United States v. DiMarco, 46
F.3d 476, 477 (5th Cir. 1995) (citing 18 U.S.C. § 3742). “The
imposition of a lawful sentence coupled with the decision not to
depart from the guidelines provides no ground for relief.” Id.
(citing United States v. Miro, 29 F. 3d 194, 198-99 (5th Cir.
1994)). Jurisdiction will lie only if the sentencing court’s
refusal to depart downward was the result of a violation of law or
misapplication of the Guidelines. Id. A refusal to depart
downward is a violation of law only if the court mistakenly assumed
that it lacked authority to depart. United States v. Burleson, 22
F.3d 93, 95 (5th Cir. 1994).
Avalos argues that the district court’s refusal to grant the
downward departure was the result of a misapplication of the
guidelines. He contends that the district court denied his motion
on the ground that his prior conviction for possession of one and
a half grams of cocaine--for which his eight-year sentence was
suspended--was an aggravated felony with a term of imprisonment
imposed that exceeded one year. Although the government made this
argument at the sentencing hearing, there is nothing in the record
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to indicate that the district court denied the motion on that
basis.
In United States v. Landerman, we stated:
We have jurisdiction to review a district court's
decision not to depart downward from the guideline range
only if the district court based its decision upon an
erroneous belief that it lacked the authority to depart.
See United States v. DiMarco, 46 F.3d 476, 478 (5th Cir.
1995). Moreover, something in the record must indicate
that the district court held such an erroneous belief.
See United States v. Willey, 57 F.3d 1374, 1392 n.32 (5th
Cir.1995).
167 F.3d 895, 899 (5th Cir. 1999). In the case at hand, although
it is certainly plausible that the district court believed it did
not have authority to depart because it concluded that part (C) of
the comment was not satisfied, there is nothing in the record to
support this conclusion. Based on our precedent, we cannot
conclude that the district court believed it was acting without
authority without some signal from the district court to that
effect. For that reason, we do not have jurisdiction to hear this
case.
Our Circuit has established a default rule with respect to
discretionary downward departures that, if the district court does
not indicate a belief that it lacks authority to depart from the
guidelines, we must assume that the district court is acting within
its discretion in refusing to depart. Because that is the case
here, we do not have jurisdiction to review the current appeal and
must therefore dismiss it.
D I S M I S S E D.
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