     Case: 14-11266      Document: 00513155483         Page: 1    Date Filed: 08/14/2015




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

                                                                              FILED
                                    No. 14-11266                        August 14, 2015
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RONNIE DEWAYNE JOHNSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-136-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Ronnie Dewayne Johnson pleaded guilty to fraudulent use of an
unauthorized access device, a violation of 18 U.S.C. § 1029(a)(2). The district
court sentenced him to 33 months of imprisonment and a two-year term of
supervised release.       Johnson contends that his sentence is procedurally
unreasonable because the district court did not state if its denial of a downward
departure under U.S.S.G. § 5G1.3 was based on the Government’s erroneous


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-11266    Document: 00513155483     Page: 2    Date Filed: 08/14/2015


                                 No. 14-11266

assertion that Johnson’s state convictions were not relevant conduct to the
instant federal matter.    Johnson argued in the district court that those
convictions were relevant conduct and that he was entitled to credit for time
served for the state sentences. He asks this court to remand the case back to
the district court for a determination of whether the denial was based on this
allegedly erroneous assertion by the Government.
      We lack jurisdiction to review the denial of a downward-departure denial
unless the district court held a mistaken belief that the Guidelines do not give
it the authority to depart. United States v. Sam, 467 F.3d 857, 861 (5th Cir.
2006). The record in this matter does not reflect that the district court was
under a mistaken belief that it lacked the authority to grant a downward
departure. Johnson’s objections to the presentence report, the Government’s
responses to those objections, and the amended presentence report all
explained the possibility of a departure under § 5G1.3, comment. (n.5).
Therefore, we will not review Johnson’s request for a remand of his case to the
district court for a clarification as to its reasons for denying a downward
departure. See Sam, 467 F.3d at 861.
      In addition, even if Johnson could establish error, any such error would
be harmless because the district court stated that it would impose the same
sentence regardless of any mistake in its calculation of a sentence. See United
States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012).
      The judgment of the district court is AFFIRMED.




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