United States of America v. Booker, 543 U.S. 220 2005 . We granted the motion to remand, affirmed Estimable’s…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5237
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC ESTIMABLE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (CR-04-103)
Submitted: July 21, 2006 Decided: August 14, 2006
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Eric Estimable was convicted by a jury of one count of
interstate transportation of stolen motor vehicles, in violation of
18 U.S.C. §§ 2312, 2 (2000). The district court sentenced
Estimable to a twenty-four-month term of imprisonment to be
followed by three years of supervised release. In his initial
appeal, the Government moved to remand for resentencing in light of
the Supreme Court’s decision in United States v. Booker, 543 U.S.
220 (2005). We granted the motion to remand, affirmed Estimable’s
conviction, vacated the sentence, and remanded for resentencing.
United States v. Estimable, 131 F. App’x 413 (4th Cir. 2005) (No.
04-5041). On remand, the district court imposed an identical
sentence, and Estimable again appeals. We affirm.
On appeal, Estimable argues that the district court
erred in failing to recognize its authority to downwardly depart
based on his assertions that Haiti’s unwillingness to accept
deportees would result in his indefinite incarceration. A district
court’s failure to grant a downward departure is not reviewable
unless a district court was under the mistaken impression that it
lacked the authority to depart. United States v. Matthews, 209
F.3d 338, 352 (4th Cir. 2000); see also United States v. Cooper,
437 F.3d 324, 333 (3d Cir. 2006) (collecting cases declining to
review a district court’s decision not to depart, even after
Booker). Our review of the transcript of the resentencing hearing

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convinces us that the district court clearly understood its
authority to depart, but concluded that a departure was not
appropriate, and that the relief sought by Estimable should be
pursued before immigration authorities. The court’s decision that
a departure was not appropriate is therefore not reviewable.
Accordingly, we affirm Estimable’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED

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