UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RAMIRO SANCHEZ-VALENCIA, DEFENDANT-APPELLANT
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 pre-sentence 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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United States v. DE LA Mata, 266 F.3d 1275 (11th Cir. 2001)…the bank and approved by bank officials. We review the district court’s discretionary refusal to depart downward only if the district court erroneously believed it did not have the statutory authority to do so. See United States v. Sanchez-Valencia, 148 F. 3d 1273, 1274 (11th Cir.1998). Fernandez contends that the district court wholly failed to address the grounds for his request, and thus, was ambiguous as to whether the court had authority to depart from the guideline. However, our review of the record re…
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United States v. Harness, 180 F.3d 1232 (11th Cir. 1999)…rict 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. Sanchez-Valencia, 148 F. 3d 1273, 1274 (11th Cir.1998) (per curiam). In this case, the district court explicitly stated that it recognized that it had the discretion to depart, but specifically declined to do so. See Sentencing Tr. at 37-38. Under these circumstances, we lack ju…
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United States v. Dudley, 463 F.3d 1221 (11th Cir. 2006)…. Winingear, 422 F. 3d 1241, 1245 (11th Cir.2005). We have noted that “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,” United States v. Sanchez-Valencia, 148 F. 3d 1273, 1274 (11th Cir.1998), but we have never said that such a statement is required. Instead, we have held that “when nothing in the record indicates otherwise, we assume the sentencing court understood it had authority to depart downward.” United Sta…
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- United States v. Fossett, 881 F.2d 976 (11th Cir. 1989)