     Case: 09-20721     Document: 00511217457          Page: 1    Date Filed: 08/27/2010




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

                                                 FILED
                                                                           August 27, 2010
                                     No. 09-20721
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CARLOS NUNO VALDIVIA, also known as Carlos Valdivia Nuno, also known
as Carlos Nuno, also known as Carlos V. Nuno, also known as Carlos Valdia
Nuno, also known as Carlos Nuno-Valdivia, also known as Carlos Vabdivia
Nuno,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CR-757-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Carlos Nuno Valdivia (Nuno) pleaded guilty to illegal reentry after
deportation and was sentenced to 33 months of imprisonment and three years
of supervised release. In calculating Nuno’s guidelines sentencing range, the
district court increased his offense level by eight levels pursuant to U.S.S.G.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20721    Document: 00511217457 Page: 2        Date Filed: 08/27/2010
                                 No. 09-20721

§ 2L1.2(b)(1)(C) because he had been deported after being convicted of an
aggravated felony.
      Nuno argues on appeal that the district court committed reversible error
when it determined that his second of two prior narcotics possession convictions
amounted to an aggravated felony under § 2L1.2(b)(1)(C). Citing Kimbrough v.
United States, 552 U.S. 85 (2007), he contends that the treatment of two mere
narcotics possession offenses in the same manner as narcotics distribution
offenses is not supported by empirical data or national experience.
      Nuno’s “empirical data” argument is foreclosed. See United States v.
Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). However, under the Supreme Court’s recent decision in Carachuri-
Rosendo v. Holder, 130 S. Ct. 2577 (2010), the district court committed plain
error when it increased Nuno’s offense level and guidelines range pursuant to
§ 2L1.2(b)(1)(C) based on his commission of a second state simple drug
possession offense that the record does not indicate was based on the fact of a
prior conviction. See Carachuri-Rosendo, 130 S. Ct. at 2589; Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009); United States v. Garza-Lopez, 410 F.3d 268,
275 (5th Cir. 2005). Although Nuno did not raise this precise issue on appeal,
this court has discretion to consider it. See United States v. Miranda, 248 F.3d
434, 444 (5th Cir. 2001). Accordingly, the district court’s decision is vacated and
the case is remanded to the district court for resentencing.
      Nuno also argues that the district court committed reversible error in
denying his request for a downward departure based on cultural assimilation.
However, we lack jurisdiction to review the denial of a request for a downward
departure unless the denial was based on the district court’s incorrect belief that
it lacked authority to grant the departure, and nothing in the record indicates
that the district court held such an incorrect belief. See United States v. Lucas,
516 F.3d 316, 350 (5th Cir. 2008).
      SENTENCE VACATED and REMANDED.

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