     Case: 10-20773     Document: 00511661275         Page: 1     Date Filed: 11/09/2011




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

                                                                            FILED
                                                                         November 9, 2011
                                     No. 10-20773
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BENJAMIN DE JESUS LACAYO, also known as Benjamin Dejesus Lacayo,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-322-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Benjamin De Jesus Lacayo pleaded guilty to illegal reentry following
deportation after conviction of an aggravated felony in violation of 8 U.S.C.
§ 1326(a), (b)(2). The district court imposed a within-guidelines-range sentence
of 46 months of imprisonment.
        Lacayo appeals the district court’s denial of his motion for downward
departure based on credit for time served in state custody after his parole was
revoked and he was adjudicated guilty of the offense of indecency with a child.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20773    Document: 00511661275      Page: 2    Date Filed: 11/09/2011

                                  No. 10-20773

Specifically, he argues that the district court erred when it arbitrarily concluded
that no federal judge would run Lacayo’s federal and state sentences
concurrently based on the time that he had spent serving the state sentence
after he was found by immigration officials.
      Under United States v. Barrera-Saucedo, 385 F.3d 533, 537 (5th Cir. 2004),
“it is permissible for a sentencing court to grant a downward departure to an
illegal alien for all or part of time served in state custody from the time
immigration authorities locate the defendant until he is taken into federal
custody.” “This Court has jurisdiction to review a district court’s refusal to grant
a downward departure from the Guidelines only if the refusal was based on an
error of law.”   Barrera-Saucedo, 385 F.3d. at 535.        “A refusal to grant a
downward departure is a violation of law only if the court mistakenly assumes
that it lacks authority to depart.” United States v. Cooper, 274 F.3d 230, 248
(5th Cir. 2001) (internal quotation marks and citation omitted). Lacayo does not
argue that the district court believed that it was not authorized to depart.
Furthermore, there is no indication in the record that the district court was
under the mistaken impression that it could not depart under the law. The court
specifically addressed the issue of a departure based on credit for time served
but concluded that it was not warranted in this case. Thus, this court lacks
jurisdiction to review the district court’s denial of Lacayo’s downward departure
motion. See Barrera-Saucedo, 385 F.3d. at 535.
      APPEAL DISMISSED.




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