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

                                                FILED
                                                                 June 9, 2009
                               No. 08-50549
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

SERGIO ELOY PENA

                                           Defendant-Appellant




                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-2997-ALL


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Sergio Eloy Pena was convicted by a jury of importation of 50 kilograms
or more of marijuana and of possession of 50 kilograms or more of marijuana
with intent to distribute. Pena was sentenced at the bottom of the guidelines
imprisonment range to concurrent 41-month terms of imprisonment and to
concurrent three-year periods of supervised release.




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-50549

      Pena contends that the district court erred in overruling his objection to
the failure of the Government to timely disclose to the defense a border crossing
report. Pena complains that the Government failed to comply with F ED. R. C RIM.
P. 16(a)(1)(E) and with the district court’s discovery order. Pena argues that the
defense was surprised by the late disclosure and was hampered in preparing its
litigation strategy, which involved a duress defense. Pena also argues that he
was substantially prejudiced because the discovery violation affected his ability
to make an informed decision about whether to plead guilty or to go to trial.
      Unlike United States v. Pascual, 606 F.2d 561, 565-66 (5th Cir. 1979), cited
by Pena, the document was disclosed to the defense prior to the trial. Pena does
not contend and the record does not indicate that the Government’s failure to
timely produce the document was the result of contumacious conduct or an
untenable legal position. The Government argued to the jury that Pena’s prior
border crossings showed that Pena was trying to deceive the inspectors at the
port of entry and that Pena was dishonest. Although the evidence was damaging
to the defense, it did not go directly to the duress defense. The jury could have
accepted Pena’s duress defense, notwithstanding the evidence of the prior border
crossings. For the same reason, prior knowledge of the border crossing report
would not necessarily have persuaded Pena that it would be prudent to plead
guilty. Pena has not shown that the Government’s noncompliance with Rule
16(a)(1)(E) affected his substantial rights. See United States v. Holmes, 406 F.3d
337, 357 (5th Cir. 2005).
      Pena contends that the sentence was substantively unreasonable. Pena
argues that he has no prior criminal history and that he has been gainfully
employed as an electrician and as a truck driver. He contends that a man for
whom he had done electrical work asked him to drive a load of marijuana across
the border and threatened to kidnap his daughter when he refused. Pena
contends that his motivation to protect his daughter mitigates the seriousness
of his offense. These arguments are not sufficient to rebut the presumption of

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reasonableness accorded to the district court’s within-guidelines sentence. See
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also United States
v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). The record reflects that the
district court was persuaded by Pena’s arguments at sentencing and adjusted
the sentence accordingly by awarding a two-level minor role adjustment. The
district court did not abuse its discretion in sentencing Pena. See Gall v. United
States, 128 S. Ct. 586, 596-97 (2007).
      Pena contends that the district court erred in determining the guidelines
sentence by failing to grant a downward departure, pursuant to U.S.S.G.
§ 5K2.12, p.s., based on the facts underlying his duress defense. This court lacks
jurisdiction to review the denial of a downward departure request unless the
district court held a mistaken belief that it lacked authority to depart. United
States v. Lucas, 516 F.3d 316, 350 (5th Cir.), cert. denied, 129 S. Ct. 116 (2008).
Pena does not argue and the record does not indicate that the district court
believed mistakenly that it was not authorized to grant the requested departure.
See id. This portion of the appeal is dismissed. See United States v. Buck, 324
F.3d 786, 797-98 (5th Cir. 2003). The district court’s judgment is AFFIRMED
in part and DISMISSED in part.




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