IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41273
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MANUEL CRUZ-ISLAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of
USDC No. B-99-CR-263-1
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August 21, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Manuel Cruz-Islas pleaded guilty to the charge of unlawful
re-entry into the United States after deportation in violation of
8 U.S.C. §§ 1326(a), (b). Cruz-Islas moved for a downward
departure, asserting that his reason for re-entering the United
States was to care for his four minor children while his wife
underwent back surgery. The district court denied the motion and
sentenced Cruz-Islas to seventy-seven months’ imprisonment, three
years of supervised release, and $100 special assessment. Manuel-
Cruz filed a timely appeal, contesting only the sentence imposed.
*
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that this opinion should not be published and is not precedent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. 99-41273
-2-
Manuel-Cruz argues on appeal that the district court mistakenly
believed that it lacked the discretion to depart downward in his
case.
This court has jurisdiction to review a defendant’s challenge
to a sentence only if it was (1) imposed in violation of law, (2)
imposed as a result of an incorrect application of the guidelines,
(3) resulted from an upward departure, or (4) was unreasonably
imposed for an offense not covered by the sentencing guidelines.
See United States v. Ogbonna, 184 F.3d 447, 451 (5th Cir.), cert.
denied, 120 S.Ct. 600 (1999). A refusal to grant a downward
departure is a violation of law only if the court mistakenly
assumes that it lacks authority to depart. United States v. Yanez-
Huerta, 207 F.3d 746, 748 (5th Cir. 2000).
At sentencing, the district court stated: “[T]he laws just
don’t lend themselves for [Cruz] to get that kind of favor as far
as his sentence is concerned. I don’t agree with the law. . . . I
am subject to the laws, so I must comply.” These statements
indicate that the district court believed itself to be without any
authority to depart from the sentencing guidelines. Although
family ties and responsibilities are not ordinarily relevant in
determining whether to depart from a sentence, see U.S.S.G.
§ 5H1.6, p.s., both 18 U.S.C. § 3553(b) and United States v. Koon,
518 U.S. 81, 92 (1996) give a district court the authority to
depart where a particular case presents atypical aggravating or
mitigating features that were not adequately taken into
consideration by the Sentencing Commission.
No. 99-41273
-3-
Accordingly, to allow the district court the opportunity to
determine whether the facts of this case are extraordinary enough
to warrant a downward departure, the defendant’s sentence is
VACATED and this case is REMANDED FOR RESENTENCING.