[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 23, 2005
No. 05-12551 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-20477-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD JESUS DIAZ,
a.k.a. Ramon Ruiz,
a.k.a. Leonardo Herrera,
a.k.a. Tommy,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 23, 2005)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Edward Jesus Diaz appeals his sentence of 355 months
imprisonment for (1) conspiracy to possess with intent to distribute 5 kilograms or
more of cocaine, in violation of 21 U.S.C. § 846; and (2) possession with intent to
distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1).
Diaz argues that the district court erred in not granting him more of a reduction to
his sentence because of: (1) the disparity in sentencing between him and his
codefendants; (2) the fact that the career offender enhancement over-represented
his actual prior criminal conduct; and (3) the substantial assistance that he had
given the government.
First, Diaz’s challenges to the district court’s refusal to grant downward
departures for sentencing disparity and over-representation of his criminal conduct
are not properly cognizable on appeal. This court has no jurisdiction to review a
sentencing judge’s denial of a downward departure unless that denial was based
upon a belief that he had no authority to depart. United States v. Calderon, 127
F.3d 1314, 1342 (11th Cir. 1997). See United States v. Winingear, 422 F.3d 1241,
1245 (11th Cir. 2005) (“[W]e lack jurisdiction to review the decision of the district
court not to apply a downward departure.”). Because the record clearly
demonstrates that the district court was well aware of its authority to depart, those
district court’s rulings cannot be challenged on appeal.
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Second, Diaz’s challenge to the extent of the departure for substantial
assistance fails. This court reviews the extent of a district court’s departure from
the Guidelines for reasonableness. Winingear, 422 F.3d at 1245-1246. Following
the Supreme Court’s decision in United States v. Booker, __ U.S. __ , 125 S. Ct.
738 (2005), our review is guided by the factors in 18 U.S.C. § 3553(a).
Winingear, 422 F.3d at 1246. Considering the factors outlined in section 3553(a),
the nature and circumstances of Diaz’s offense, and the district court’s detailed
discussion of its reasons for the extent of the departure, we find Diaz’s sentence to
be reasonable. Accordingly, we affirm Diaz’s sentence.
AFFIRMED.
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