                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               July 05, 2006
                             No. 05-16530                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 05-20333-CR-KMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ANA GARCIA,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (July 5, 2006)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:
      Ana Garcia appeals her 18-month sentence imposed following her plea of

guilty to eight counts of bank fraud. Garcia assumes on appeal that she is entitled

to appeal the district court’s denial of her motion for a downward departure under

U.S.S.G. § 5K2.0(d)(5). She contends that the denial, which was based upon the

merits, and, alternatively, procedural grounds, was in error. Garcia also claims that

the district court believed that it lacked authority to depart.

      Where a sentencing court refuses to depart downward based on the exercise

of its discretionary authority, we lack jurisdiction to review that decision. United

States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999). “[W]hen nothing in the

record indicates otherwise, [we] assume the sentencing court understood it had

authority to depart downward.” Chase, 174 F.3d at 1195; see United States v.

Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) (“After Booker,1 our review of

decisions regarding downward departures remains limited”). In fact, a district

court’s refusal to depart downward can present a cognizable claim on appeal only

if the court erroneously believed that it lacked the authority to grant such a

departure. Chase, 174 F.3d at 1195; United States v. Hadaway, 998 F.2d 917, 919

(11th Cir. 1993).




      1
          United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005).

                                                2
A review of the sentencing hearing reveals that the district court understood that it

had the authority to grant the departure and that it ruled on the motion both

procedurally and on the merits. The district court made no statements that did not

have the authority to grant the departure so we assume that it thought it did have

the authority. See Chase, 174 F.3d at 1195. Garcia’s claims to the contrary are

without support in the record. Therefore, we lack jurisdiction to review the merits

of the district court’s denial of Garcia’s motion for downward departure.

       Because the motion was considered on the merits by the district court, we

further decline to reach her argument that it erred by finding that the motion was

untimely filed.2 See Chase, 174 F.3d at 1195; Hadaway, 998 F.2d at 919.

Specifically, although the court alternatively discussed another basis for denying

the motion (e.g., timeliness), the court’s ruling on the merits rendered the former

omission moot.

       Based upon the foregoing, we affirm Garcia’s sentence.

AFFIRMED.




       2
        We have previously considered the Southern District of Florida’s Local Rule 88.8(6), which
requires that motions for departure be filed no later than 5 days prior to the sentencing proceeding,
and determined that the rule is permissible. United States v. Quintana, 300 F.3d 1227, 1230
(11th Cir. 2005).

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