     Case: 13-10234      Document: 00512462536         Page: 1    Date Filed: 12/05/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-10234
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         December 5, 2013
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JONATHAN RODRIGUEZ-RUIZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-54-1


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Jonathan Rodriguez-Ruiz appeals the 151-month within-guidelines
sentence imposed following his guilty plea to possession with intent to
distribute a controlled substance. Rodriguez-Ruiz challenges the substantive
reasonableness of his sentence, arguing that the district court “should have
granted a downward departure or variance from the Guidelines because of the
cumulative factors presented to the court.”


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10234    Document: 00512462536     Page: 2   Date Filed: 12/05/2013


                                 No. 13-10234

      To the extent that Rodriguez-Ruiz challenges the district court’s denial
of a downward departure, “[t]his court lacks jurisdiction to review 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) (emphasis omitted). Contrary to Rodriguez-Ruiz’s
suggestion that it is unclear from the record whether the district court believed
it lacked the authority to depart, the record reflects that the court considered
sentencing him below the applicable guidelines range yet determined that a
below-guidelines sentence was not warranted. Accordingly, this court lacks
jurisdiction to review the district court’s denial of a downward departure. See
Sam, 467 F.3d at 861.
      Rodriguez-Ruiz has not rebutted the presumption of reasonableness that
attaches to his within-guidelines sentence. See United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010); United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009).   Thus, he has not demonstrated that the district court abused its
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).
      AFFIRMED.




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