United States v. Rivera-Duran

* 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that this opinion should not be published and is not precedent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. 01-50753
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIAN RIVERA-DURAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-01-CR-120-1
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March 25, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Julian Rivera-Duran appeals his sentence following his
conviction for illegal reentry in violation of 8 U.S.C. § 1326.
He argues that the district court erred in denying his motion for
a downward departure. Rivera-Duran asserts that the district
court’s denial of his departure motion was based on an error of
law because the district court stated that it believed it did not
have legal authority to grant the motion.

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No. 01-50753
-2-
The district court originally stated that it did not know of
legal authority that would allow it to grant the departure motion
but later clarified this statement by saying it believed it had
legal authority to grant the motion but declined to do so based
on its interpretation of other cases. Further review of the
record also indicates that the district court was aware of
Rivera-Duran’s specific circumstances.
When a refusal to depart is based on the facts of a
particular case, the appellate court lacks jurisdiction and the
case should be dismissed. See United States v. Lugman, 130 F.3d
113, 115 (5th Cir. 1997). However, the appellate court will
review the decision not to depart if the record indicates the
district court based its decision on an error of law. Id.; see
also United States v. Landerman, 167 F.3d 895, 899 (5th Cir.
1999). Because the record does not indicate that the district
court based its decision on an error of law, this court does not
have jurisdiction and the appeal is DISMISSED.

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