United States v. Carlos Gonzalez-Barajas

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 15, 2005
No. 04-15210 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 04-00105-CR-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS GONZALEZ-BARAJAS,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(July 15, 2005)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

Carlos Gonzalez-Barajas appeals his 33-month sentence for unlawful reentry

following removal, in violation of 8 U.S.C. § 1326(a). On appeal, Gonzalez
contends that the district court should have granted a downward departure on the

basis of his criminal history category overrepresenting the seriousness of his

criminal history, pursuant to U.S.S.G. § 4A1.3. Initially, Gonzalez claims that this

Court has the authority to review the district court’s denial of a downward

departure because the court erroneously believed it was not authorized to depart.

Gonzalez then argues that the district court should not have solely examined the

timing and pattern of his offenses in denying the downward departure, but should

have considered the nature and quality of the juvenile offenses before determining

whether to depart downward.

We do not normally review the district court’s denial of a downward

departure, except in cases where the district court incorrectly believed that it did

not have authority to depart. United States v. Ortega, 358 F.3d 1278, 1279 (11th

Cir. 2003). If the district court expresses ambivalence about its authority to depart,

we review the record to determine the district court’s understanding. United States

v. Hansen, 262 F.3d 1217, 1255 (11th Cir. 2001). “Where . . . the district court’s

statements reflect an ambiguity concerning its ability to depart, we resolve the

ambiguity in favor of the defendant” and review the court’s downward departure

decision. Id. at 1279 n.3. However, “we assume that the sentencing court

understood it had authority to depart downward” when the record does not indicate

2
any ambivalence. United States v. Chase, 174 F.3d 1193, 1195 (11th Cir.1999).

When the district court properly recognizes the scope of its authority to depart, this

Court has no jurisdiction to review the denial of a downward departure and will

dismiss the appeal. United States v. Patterson, 15 F.3d 169, 171 (11th Cir. 1994).

We conclude that the district court properly understood its authority to

depart because the court found that: (1) the timing and pattern of Gonzalez’s

crimes weighed against granting a downward departure pursuant to § 4A1.3; and

(2) case law prohibited it from examining the facts of prior crimes when

considering a departure pursuant to § 4A1.3. See United States v. Phillips, 120

F.3d 227, 231-32 (11th Cir.1997) (rejecting defendant's contention that the

circumstances surrounding a prior conviction can be considered in U.S.S.G. §

4A1.3 departures, and stating the U.S.S.G. § 4A1.3 policy statement “is concerned

with the pattern or timing of prior convictions”). Because the district court

understood it had the authority to depart, we cannot review the district court’s

denial of the downward departure. Accordingly, we dismiss Gonzalez’s appeal.

DISMISSED.1

1
Gonzalez’s request for oral argument is denied.

3