United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 17, 2004
Charles R. Fulbruge III
No. 03-41239 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER AGUILAR-ALVAREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(M-03-CR-458-1)
Before BARKSDALE, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Javier Aguilar-Alvarez appeals his sentence on his guilty-plea
conviction for illegal reentry following deportation, in violation of
8 U.S.C. § 1326(a) & (b). Aguilar contends that the district court
erred in determining it lacked authority under § 5K2.0 of the
Sentencing Guidelines to grant a downward departure based upon
Aguilar’s early entry of his guilty plea (two hours after
arraignment). A district court’s application of the Guidelines is
reviewed de novo; its findings of fact, for clear error. E.g.,
United States v. Ocana, 204 F.3d 585, 588 (5th Cir.), cert. denied,
*
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this opinion should not be published and is not precedent except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.
531 U.S. 880 (2000). Because this case involves whether the district
court correctly determined it lacked authority to grant the downward
departure under § 5K2.0, we have jurisdiction. E.g., United States
v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir.), cert. denied, 528
U.S. 894 (1999).
Referencing 18 U.S.C. § 3553(b), Guidelines § 5K2.0 provides
that the sentencing court may impose a sentence outside the range
established by the applicable guidelines, if it finds “that there
exists an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described”. 18 U.S.C. § 3553(b). Some
authority exists in the commentaries to the guidelines, as well as
from other courts that have addressed the issue, that the district
court has the authority to depart under § 5K2.0 in an exceptional
case. See United States v. Shah, 263 F. Supp. 2d 10, 36-37 (D.D.C.
2003); United States v. Dethlefs, 123 F.3d 39, 46 (1st Cir. 1997); §
5K2.0, comment. (n.3(B)(i))(Nov. 2003), comment. (Nov. 2002).
Aguilar’s base offense level was reduced for acceptance of
responsibility. Assuming, without deciding, that the district court
had the discretion under § 5K2.0 to depart, Aguilar has not alleged
any facts that would warrant a departure.
AFFIRMED
2