United States v. Sanchez-Valencia

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 98-8167 2/19/03 Non-Argument Calendar THOMAS K. KAHN ________________________ CLERK D.C. Docket No. 2:97-cr-028-WCO

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

RAMIRO SANCHEZ-VALENCIA, Defendant-Appellant.

__________________________ Appeal from the United States District Court for the Northern District of Georgia _________________________ (August 5, 1998)

Before GODBOLD, HILL and FAY, Senior Circuit Judges. PER CURIAM:

Ramiro Sanchez-Valencia appeals his 66-month sentence for illegally re-entering

the United States after being deported.

On appeal, Sanchez-Valencia argues that the district court erroneously believed

that it did not have the authority to downwardly depart on the basis of cultural

assimilation, and that such a departure was warranted.

This Court has held that a district court's discretionary refusal to depart downward

is not appealable, unless the refusal was based on an erroneous belief that the court did

not have the statutory authority to depart from the guideline range. United States v.

Fossett, 881 F.2d 976, 979 (11th Cir. 1989).

We have reviewed the transcripts, the presentence investigation report, the

judgment and commitment order, and all other relevant portions of the record. Those,

together with the briefs of the parties, demonstrate that the sentencing judge was aware of

his authority to depart in light of United States v. Lipman, 133 F.3d 726 (9th Cir. 1998).

While it is possible to determine from this record that the district court was aware

of its authority, it would facilitate review if sentencing judges would state on the record

that they believe they have or do not have the authority to depart.

AFFIRMED.

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