     Case: 15-40666      Document: 00513362396         Page: 1    Date Filed: 01/29/2016




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

                                    No. 15-40666
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                         January 29, 2016
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

JOSE JULIAN ABUNDIZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:14-CR-1199


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Jose Julian Abundiz, federal prisoner # 37573-279, appeals his 120-
month sentence imposed following his guilty plea conviction for possession
with intent to distribute approximately 1,626 kilograms of marijuana.
Abundiz contends that he should have been eligible for a sentence below the
mandatory minimum because both of his prior convictions were misdemeanors,
though he concedes that he validly received two criminal history points based


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-40666

on the prior misdemeanor convictions making him ineligible for the application
of the safety valve provision. He contends that the district court could have
departed downward based on other factors, such as his minor role in the offense
and the fact that his limited involvement in the offense precluded him from
obtaining information to provide substantial assistance to the Government.
The Government responds with a motion for summary affirmance, arguing
that Abundiz conceded that there were no nonfrivolous issues arising from his
guilty plea or sentencing.
      A district court has the discretion to depart below a statutory mandatory
minimum penalty only under the two circumstances set out in 18 U.S.C.
§ 3553(e) and § 3553(f). See United States v. Phillips, 382 F.3d 489, 498-99 (5th
Cir. 2004). These circumstances are when the Government files a motion for
a reduction of sentence because the defendant has provided it with substantial
assistance or if the defendant meets the criteria rendering him eligible for the
safety valve provision under § 3553(f). Id. at 499.
      The Government did not file a motion for a departure based on Abundiz’s
substantial assistance. As Abundiz concedes, the district court did not err in
determining that the sentences for his two prior misdemeanor convictions
resulted in two criminal history points. See U.S.S.G. § 4A1.1(c); U.S.S.G.
§ 4A1.2, cmt. (n.2), (n.5).   Therefore, the district court was correct in its
determination that it was not authorized to depart below the statutory
mandatory minimum sentence See United States v. Krumnow, 476 F.3d 294,
297-98 (5th Cir. 2007); Phillips, 382 F.3d at 499.
      A summary affirmance is not appropriate in this case; therefore, the
Government’s motion is DENIED. See United States v. Holy Land Found. for
Relief and Dev., 445 F.3d 771, 781 (5th Cir. 2006).          The Government’s




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                               No. 15-40666

alternative motion for an extension of time to file a brief is also DENIED.
Abundiz’s sentence is AFFIRMED.




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