United States v. Serrano-Lopez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-40779
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SERGIO DANIEL SERRANO-LOPEZ,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-1266-2

Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:
*

Sergio Daniel Serrano-Lopez challenges his 40-month sentence for
aiding and abetting the smuggling of defense articles from the United States.
That sentence includes a slight downward departure based on family ties and
responsibilities (U.S.S.G. § 5H1.6, p.s.) and offender circumstances not
ordinarily relevant but deemed exceptional in the defendant’s case (U.S.S.G.
5K2.0(a)(4)). On appeal, Serrano-Lopez argues that he should have received a

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
June 10, 2020

Lyle W. Cayce
Clerk
Case: 19-40779 Document: 00515448287 Page: 1 Date Filed: 06/10/2020

No. 19-40779
2
more substantial departure on the ground that the State Department has
proposed that below .50 caliber ammunition and magazines be removed from
the United States Munitions List.
We have jurisdiction to review a district court’s decision not to depart
downward from the applicable guidelines range only if the district court based
its decision on a mistaken belief that it lacked the authority to depart. See
United States v. Sam, 467 F. 3d 857, 861 (5th Cir. 2006). Recognizing this
limited path for challenging a refusal to depart, Serrano-Lopez contends that
the district court believed that it lacked authority to depart based on a possible
future change in the law. But he has not demonstrated that the district court
held such an erroneous belief. Nothing in the record indicates that the district
court wished to grant Serrano-Lopez a downward departure pursuant to §
2M5.2 or § 5K2.0(a) based on the State Department’s proposed rule change,
but mistakenly believed it could not. Rather, the record reflects that the
district court did not believe a further departure was warranted under the facts
and circumstances of the case. We therefore may not consider any argument
challenging the district court’s decision to deny Serrano-Lopez’s request for a
downward departure. See Sam, 467 F.3d at 861.
Accordingly, the appeal is DISMISSED for lack of jurisdiction.
Case: 19-40779 Document: 00515448287 Page: 2 Date Filed: 06/10/2020