                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 18 2009

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-50134

              Plaintiff - Appellee,              D.C. No. 08-CR-3425-MMA

  v.
                                                 MEMORANDUM *
JOVANI CLEMENTE FELIX-LOPEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                           Submitted November 3, 2009**
                               Pasadena, California

Before: GOULD and BEA, Circuit Judges, and MOLLOY, *** District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
      Jovani Clemente Felix-Lopez appeals his 21-month sentence. He contends

the district court erred when it did not grant a Guideline departure under U.S.S.G. §

5K2.0 and that his sentence is substantively unreasonable. We affirm.

      The district court correctly determined that it had authority as a matter of

law to grant a downward departure under U.S.S.G. § 5K2.0. Felix-Lopez claims

the district court erred because it made a legal determination that his deportation

and separation from family were not authorized grounds for departure under

U.S.S.G. § 5K2.0. “In the absence of a clear expression to the contrary, we assume

that the district court is aware of its discretionary authority to depart.” United

States v. Gonzalez-Perez, 472 F.3d 1158, 1162 (9th Cir. 2007). The record

establishes the court viewed its decision not to grant the downward departure as an

exercise of its discretion. The trial court stated that Felix-Lopez had not shown

that his case possessed the “type of circumstances” that warranted a departure.

Therefore, the court did not misapprehend its authority to depart downward and

properly exercised its discretion in calculating the sentencing range under the

Guidelines.

      Further, the 21-month low-end Guidelines sentence is not substantively

unreasonable. Felix-Lopez argues the low-end Guideline sentence imposed by the

trial court is evidence the court would have imposed a lower sentence but for its


                                           2
erroneous application of the Guidelines. However, as stated above, the trial court

did not misconstrue its authority to depart. A sentence within a correctly

calculated Guidelines range will generally not be found unreasonable on appeal.

United States v. Overton, 573 F.3d 679, 700 (9th Cir. 2009). The district court

stated that it had considered all the sentencing factors and found that a 21-month

sentence, at the low end of the Guidelines range, was appropriate. The sentence

was not unreasonable.

      AFFIRMED.




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