United States v. Trevino

* 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that this opinion should not be published and is not precedent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. 01-41464
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO TREVINO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-99-CR-263-1
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August 20, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Mario Trevino appeals his sentence following his guilty plea
conviction of one count of possession of 6,704 grams of
methamphetamine with intent to distribute. He argues that the
district court abused its discretion when it refused to grant him
a downward departure at sentencing based on the alleged low
purity of the methamphetamine and based on his mistaken belief
that the contraband he possessed was marijuana.

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No. 01-41464
-2-
This court lacks jurisdiction to review a defendant’s
challenge to his sentence based on mere dissatisfaction with the
court’s refusal to grant a downward departure, unless the court’s
refusal was the result of a violation of law or a misapplication
of the Guidelines. United States v. DiMarco, 46 F.3d 476, 477
(5th Cir. 1995). A refusal to depart is a violation of law if
the court mistakenly believed that it lacked the authority to
depart. United States v. Burleson, 22 F.3d 93, 95 (5th Cir.
1994).
The record does not show that the district court’s refusal
to grant his requested downward departures was based on a
mistaken belief that it could not do so. Rather, the district
court based its decision on its belief that the requested
departures were not appropriate. Because the district court did
not misapprehend its authority under the Sentencing Guidelines,
we lack jurisdiction to hear this appeal. Id. Accordingly,
Trevino’s appeal is DISMISSED.

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