[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 98-8167 2/19/03
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 2:97-cr-028-WCO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO SANCHEZ-VALENCIA,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(August 5, 1998)
Before GODBOLD, HILL and FAY, Senior Circuit Judges.
PER CURIAM:
Ramiro Sanchez-Valencia appeals his 66-month sentence for illegally re-entering
the United States after being deported.
On appeal, Sanchez-Valencia argues that the district court erroneously believed
that it did not have the authority to downwardly depart on the basis of cultural
assimilation, and that such a departure was warranted.
This Court has held that a district court's discretionary refusal to depart downward
is not appealable, unless the refusal was based on an erroneous belief that the court did
not have the statutory authority to depart from the guideline range. United States v.
Fossett, 881 F.2d 976, 979 (11th Cir. 1989).
We have reviewed the transcripts, the presentence investigation report, the
judgment and commitment order, and all other relevant portions of the record. Those,
together with the briefs of the parties, demonstrate that the sentencing judge was aware of
his authority to depart in light of United States v. Lipman, 133 F.3d 726 (9th Cir. 1998).
While it is possible to determine from this record that the district court was aware
of its authority, it would facilitate review if sentencing judges would state on the record
that they believe they have or do not have the authority to depart.
AFFIRMED.
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