United States v. Caserez-Ballecios

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 22, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-51051
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALEXANDER CASEREZ-BALLECIOS, also known as
Cesar Omar Casarez-Vallecillos,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-02-CR-95-ALL-SS
--------------------
Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Jose Alexander Caserez-Ballecios (Caserez) appeals his
sentence following his guilty-plea conviction for illegal reentry
following deportation, in violation of 8 U.S.C. § 1326. Caserez
argues that he is entitled to a downward departure because the
Immigration and Naturalization Service issued him a work permit
after learning that he was an illegal alien and a convicted

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No. 02-51051
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felon, and then allowed him to remain in the United States for
several years.
This court has jurisdiction to review the district court’s
refusal to depart downward “only if the district court based its
decision upon an erroneous belief that it lacked the authority
to depart.” United States v. Landerman, 167 F.3d 895, 899
(5th Cir. 1999). This court has no jurisdiction if the district
court refused to depart downward “based on its determination
that departure [was] not warranted on the facts of the case.”
United States v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997).
The record reflects that the district court was aware that
it had the authority to depart downward, but that it refused to
do so based on the circumstances of the case. Consequently, this
court lacks jurisdiction to review the district court’s refusal
to depart. Landerman, 167 F.3d at 899. Accordingly, this appeal
is DISMISSED.

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