No. 98-51027
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51027
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO ESPINOZA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-97-CR-43-ALL
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July 14, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Rodolfo Espinoza-Hernandez (Espinoza) appeals his sentence for
illegal reentry. He argues that the district court erred in
determining that it was unable to depart under the extraordinary
circumstances of his case, as is permitted by Koon v. United
States, 518 U.S. 81, 106 (1996).
This court has jurisdiction if a refusal to depart downward
was premised upon a mistaken conclusion that the guidelines do not
permit such a departure, but lacks jurisdiction if the refusal was
*
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that this opinion should not be published and is not precedent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. 98-51027
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premised on a determination that a departure was not warranted
under the facts of the case. United States v. Brace, 145 F.3d 247,
263 (5th Cir.)(en banc), cert. denied, 119 S. Ct. 426 (1998). The
language used by the district court demonstrates that under the
facts of this case, it did not believe that Espinoza’s mental
disorder was sufficient to warrant a downward departure. As a
result, this court does not have jurisdiction to review the
district court’s refusal to downwardly depart, and therefore the
APPEAL IS DISMISSED.
The Government has filed an unopposed motion requesting that
the appellate briefs be placed under seal. This motion is GRANTED.