IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 20, 2007
No. 07-10393
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FRANCISCO LEDEZMA GRACIA SR
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-9-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Francisco Ledezma Gracia, Sr., pleaded guilty to one count of possession
of more than 100 kilograms of marijuana with intent to distribute, in violation
of 21 U.S.C. § 841(a), (b). Gracia moved for a downward departure from the
guidelines range of 57 to 71 months on the basis of the delay between the offense
conduct and the prosecution, during which time he committed and was convicted
of a new offense of illegal reentry. He also invoked the district court’s authority
*
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should not be published and is not precedent except under the limited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. 07-10393
under 18 U.S.C. § 3553(a). The district court rejected his arguments, and he now
appeals.
To the extent that Gracia appeals the denial of his motion for a downward
departure, it is settled that we lack jurisdiction to review such a denial unless
it was based on the district court’s erroneous belief that it had no authority to
depart. See United States v. Hernandez, 457 F.3d 416, 424 and n.5 (5th Cir.
2006); United States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir.1999). As
there is no indication that the district court erroneously believed it could not
depart, the district court’s denial of a downward departure is not reviewable. We
dismiss his appeal as to this issue. See United States v. Martinez, 263 F.3d 436,
440 (5th Cir. 2001).
To the extent that Gracia invokes the district court’s authority under
§ 3553(a), he effectively argues that the sentence was unreasonable under the
standard announced in United States v. Booker, 543 U.S. 220 (2005), and our
jurisprudence interpreting it. We do not reach whether Gracia’s arguments
under § 3553(a) in the district court were sufficient to preserve the
reasonableness challenge, although they may have been as he makes the same
arguments on appeal that he did in the district court. Cf. United States v.
Hernandez-Martinez, 485 F.3d 270, 272 and n.1 (5th Cir. 2007), cert. denied,
S. Ct. , 2007 WL 2348214 (Oct. 1, 2007) (No. 07-5882). Even under
reasonableness review, his arguments fail.
Because the district court’s sentence fell within a properly calculated
guidelines range, it enjoys a presumption of reasonableness that Gracia must
rebut under the analysis of United States v. Nikonova, 480 F.3d 371, 376 (5th
Cir. 2007), cert. denied, S. Ct. , 2007 WL 1708063 (Oct. 1, 2007) (No. 06-
11834). Gracia argues that the delays in prosecution reduced the deterrent
effect of punishment, that he was subject to a greater criminal history category
as a result of the delays, and that a reduced sentence would, under these
circumstances, promote respect for the law. The underlying premise of his
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No. 07-10393
argument is that, but for the delays, he would have received a concurrent
sentence and would not have been subject to a higher criminal history category.
Gracia’s arguments are insufficient to rebut the presumption of
reasonableness. The district court would not have been required to impose a
concurrent sentence even if Gracia had been prosecuted more expeditiously. To
the contrary, 18 U.S.C. § 3584(a) establishes a preference for consecutive
sentences where the sentences are imposed at different times. See United States
v. Candia, 454 F.3d 468, 477 (5th Cir. 2006). Further, Gracia cites no statutory
or jurisprudential support for his argument that the increased criminal history
category - which was due to his commission of another offense - renders the
ultimate sentence unreasonable. See id. In sum, Gracia has not shown that the
district court failed to account for a significant factor, gave weight to an
improper or irrelevant factor, or clearly erred in balancing the appropriate
factors such that the sentence “constitute[s] a clear error in the court’s exercise
of its broad sentencing discretion.” Nikonova, 480 F.3d at 376.
For the foregoing reasons, we AFFIRM the district court’s judgment in
part and DISMISS the appeal in part for lack of jurisdiction.
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