United States of America v. Jovani Clemente Felix-Lopez

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOVANI CLEMENTE FELIX-LOPEZ,
Defendant - Appellant.
No. 09-50134
D.C. No. 08-CR-3425-MMA
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted November 3, 2009 **
Pasadena, California
Before: GOULD and BEA, Circuit Judges, and MOLLOY, *** District Judge.
FILED
NOV 18 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Jovani Clemente Felix-Lopez appeals his 21-month sentence. He contends
the district court erred when it did not grant a Guideline departure under U.S.S.G. §
5K2.0 and that his sentence is substantively unreasonable. We affirm.
The district court correctly determined that it had authority as a matter of
law to grant a downward departure under U.S.S.G. § 5K2.0. Felix-Lopez claims
the district court erred because it made a legal determination that his deportation
and separation from family were not authorized grounds for departure under
U.S.S.G. § 5K2.0. “In the absence of a clear expression to the contrary, we assume
that the district court is aware of its discretionary authority to depart.” United
States v. Gonzalez-Perez, 472 F.3d 1158, 1162 (9th Cir. 2007). The record
establishes the court viewed its decision not to grant the downward departure as an
exercise of its discretion. The trial court stated that Felix-Lopez had not shown
that his case possessed the “type of circumstances” that warranted a departure.
Therefore, the court did not misapprehend its authority to depart downward and
properly exercised its discretion in calculating the sentencing range under the
Guidelines.
Further, the 21-month low-end Guidelines sentence is not substantively
unreasonable. Felix-Lopez argues the low-end Guideline sentence imposed by the
trial court is evidence the court would have imposed a lower sentence but for its

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erroneous application of the Guidelines. However, as stated above, the trial court
did not misconstrue its authority to depart. A sentence within a correctly
calculated Guidelines range will generally not be found unreasonable on appeal.
United States v. Overton, 573 F.3d 679, 700 (9th Cir. 2009). The district court
stated that it had considered all the sentencing factors and found that a 21-month
sentence, at the low end of the Guidelines range, was appropriate. The sentence
was not unreasonable.
AFFIRMED.

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