United States v. Pena

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20718
Conference Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
MARCIALES PENA, Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-25-1
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Marciales Pena appeals his guilty-plea conviction for aiding
and abetting the possession with intent to distribute more than
500 grams of cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(b)(ii) and 18 U.S.C. § 2. He argues that the
district court erred in denying his motion for a downward
departure based on his status as a deportable alien. Because the
record indicates that the district court recognized its authority
to depart downward based on Pena’s status as a deportable alien
but determined that a downward departure was not warranted based
on the facts of the case, we lack jurisdiction to review the

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No. 01-20718
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district court’s decision. See United States v. Brace, 145 F.3d
247, 263 (5th Cir. 1998)(en banc).
APPEAL DISMISSED.

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