United States v. Rodriguez-Canales

* 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this opinion should not be published and is not precedent except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
March 17, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 03-20692
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO RODRIGUEZ-CANALES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-03-CR-39-ALL)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Arturo Ridriguez-Canales (“Rodriguez”) appeals his sentence,
imposed following his guilty plea for illegal reentry. He claims
the district court mistakenly believed it did not have authority to
depart downward from the sentencing guidelines based on the double
counting of his previous conviction.
We lack jurisdiction to review a refusal to depart downward,
however, unless it was based on a mistaken belief that the court
lacked authority to so depart. See, e.g., United States v. Thames,

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214 F.3d 608, 612 (5th Cir. 2000). The record reflects that the
district court was aware that it had the authority to depart
downward; it did not believe that Rodriguez’ case warranted it.
Therefore, we lack jurisdiction to review the determination. See
id.; United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995).
DISMISSED

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