United States v. Gutierrez ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40195
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL OCAMPO GUTIERREZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(M-00-CR-450-1)
_________________________________________________________________
January 21, 2002
Before HIGGINBOTHAM, WEINER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Manuel Ocampo Gutierrez appeals his sentence of thirty months’
imprisonment after pleading guilty to importation of marijuana.
Ocampo maintains this court should vacate his sentence and remand
for reconsideration of an aberrant behavior departure because the
district court mistakenly believed the sentencing guidelines
prohibited such a departure. He correctly notes the guidelines
prohibit such departures for serious drug trafficking offenses,
defined by the guidelines as only those drug trafficking offenses
that result in a mandatory minimum sentence. See U.S.S.G. § 5K2.20
*
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this opinion should not be published and is not precedent except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.
& cmt. n.1. Because Ocampo was not subject to a mandatory minimum
sentence, he contends the guidelines did not prohibit the
departure.
We review the district court’s application of the guidelines
de novo and its findings of fact for clear error. United States v.
Sharpe, 193 F.3d 852, 872 (5th Cir. 1999), cert. denied, 528 U.S.
1173, and cert. denied, 528 U.S. 1180, and cert. denied, 530 U.S.
1229 (2000). We do not have jurisdiction to review a challenge to
a sentence which involves a discretionary “refusal to grant a
downward departure and not a legal error or misapplication of the
guidelines”. United States v. DiMarco, 46 F.3d 476, 477 (5th Cir.
1995). Appellate review is available if the district court
erroneously believed it lacked the authority to depart. Id. at
478.
Had the district court only addressed the applicability of §
5K2.20 in terms of whether Ocampo’s conviction constituted a
“serious drug trafficking offense”, we would conclude denial of the
departure constituted error, because Ocampo’s was not a serious
drug trafficking offense as defined by U.S.S.G. § 5K2.20 cmt. n.1.
The district court’s comments at sentencing about the facts of this
case, however, make it apparent that, based on those facts, even if
that court had decided the departure was not prohibited, the court
would not have exercised its discretion to depart. “Aberrant
behavior” is defined in application note 1 to U.S.S.G. § 5K2.20 as
a criminal transaction “committed without significant planning”.
The district court’s statements constitute finding that Ocampo’s
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crime did not meet this criteria. Accordingly, any error in the
district court’s interpretation of application note 1 of § 5K2.20
is harmless because, based on the facts in this case, the court
would not have departed downward. FED. R. CRIM. P. 52(a).
AFFIRMED
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