Case: 10-20773 Document: 00511661275 Page: 1 Date Filed: 11/09/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 9, 2011
No. 10-20773
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BENJAMIN DE JESUS LACAYO, also known as Benjamin Dejesus Lacayo,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-322-1
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Benjamin De Jesus Lacayo pleaded guilty to illegal reentry following
deportation after conviction of an aggravated felony in violation of 8 U.S.C.
§ 1326(a), (b)(2). The district court imposed a within-guidelines-range sentence
of 46 months of imprisonment.
Lacayo appeals the district court’s denial of his motion for downward
departure based on credit for time served in state custody after his parole was
revoked and he was adjudicated guilty of the offense of indecency with a child.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-20773 Document: 00511661275 Page: 2 Date Filed: 11/09/2011
No. 10-20773
Specifically, he argues that the district court erred when it arbitrarily concluded
that no federal judge would run Lacayo’s federal and state sentences
concurrently based on the time that he had spent serving the state sentence
after he was found by immigration officials.
Under United States v. Barrera-Saucedo, 385 F.3d 533, 537 (5th Cir. 2004),
“it is permissible for a sentencing court to grant a downward departure to an
illegal alien for all or part of time served in state custody from the time
immigration authorities locate the defendant until he is taken into federal
custody.” “This Court has jurisdiction to review a district court’s refusal to grant
a downward departure from the Guidelines only if the refusal was based on an
error of law.” Barrera-Saucedo, 385 F.3d. at 535. “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. Cooper, 274 F.3d 230, 248
(5th Cir. 2001) (internal quotation marks and citation omitted). Lacayo does not
argue that the district court believed that it was not authorized to depart.
Furthermore, there is no indication in the record that the district court was
under the mistaken impression that it could not depart under the law. The court
specifically addressed the issue of a departure based on credit for time served
but concluded that it was not warranted in this case. Thus, this court lacks
jurisdiction to review the district court’s denial of Lacayo’s downward departure
motion. See Barrera-Saucedo, 385 F.3d. at 535.
APPEAL DISMISSED.
2