                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 11-13988                ELEVENTH CIRCUIT
                         Non-Argument Calendar            FEBRUARY 3, 2012
                       ________________________               JOHN LEY
                                                               CLERK
               D.C. Docket No. 4:11-cr-00145-WTM-GRS-1



UNITED STATES OF AMERICA,



                                                     Plaintiff-Appellee,

                                   versus

RICHARD D. GUERARD,

                                                     Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                            (February 3, 2012)

Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
      Richard Guerard appeals his 52-month sentence, imposed after he pleaded

guilty to one count of conspiring to commit bank fraud, in violation of 18 U.S.C.

§ 371. The district court correctly calculated an applicable guidelines range of

46–57 months imprisonment. The court then denied the government’s motion for

a downward departure based upon Guerard’s substantial assistance after

concluding that Guerard had already received substantial benefit from the plea

agreement. The district court specifically pointed out that, had Guerard been

found guilty of any count in the indictment, which charged a number of bank fraud

offenses under 18 U.S.C. § 1344, he would have faced a much higher guidelines

range of 87–108 months imprisonment.

      On appeal, Guerard shows that, had he pleaded guilty to any one count in

the indictment, his applicable guidelines range would have been only 51–63

months imprisonment, not 87–108 months imprisonment. For this reason, he

argues, the district court’s finding that he substantially benefitted by pleading

guilty was clearly erroneous. Accordingly, Guerard claims that his sentence is

procedurally unreasonable because the district court relied on a clearly erroneous

factual finding when it denied the government’s motion for a downward departure.

      We are required to examine our jurisdiction sua sponte, and do so under de

novo review. United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). This

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jurisdictional inquiry reveals that, under our prior precedent, we lack jurisdiction

to consider Guerard’s challenge of the district court’s denial of the government’s

downward departure motion. Where the district court understood it had the

authority to grant a downward departure, as the record indicates was the case here,

our precedent dictates that we lack jurisdiction to review the court’s decision to

deny the departure. United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir.

2006). This jurisdictional rule encompasses decisions, such as in this case, to

deny a motion for a downward departure based upon a defendant’s substantial

assistance. United States v. Willis, 649 F.3d 1248, 1258–59 (11th Cir. 2011).

      Lacking jurisdiction to review the district court’s denial of the downward

departure motion, we must affirm Guerard’s sentence.

      AFFIRMED.




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