     Case: 19-40779      Document: 00515448287         Page: 1    Date Filed: 06/10/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 19-40779                             June 10, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 19-40779     Document: 00515448287     Page: 2   Date Filed: 06/10/2020


                                  No. 19-40779

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.




                                        2
