     Case: 11-40406     Document: 00511901825         Page: 1     Date Filed: 06/27/2012




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

                                                                            FILED
                                                                           June 27, 2012
                                     No. 11-40406
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

YOLANDA TOVAR, also known as Yolanda Rios,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:04-CR-290-27


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Yolanda Tovar appeals the 120-month prison sentence imposed for her
guilty plea conviction for conspiracy to possess with intent to distribute 38.76
kilograms of marijuana and 6.893 kilograms of cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A), 846. The 120-month sentence imposed was the
mandatory minimum sentence pursuant to § 841(b)(1)(A).




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40406    Document: 00511901825      Page: 2   Date Filed: 06/27/2012

                                  No. 11-40406

      Tovar argues that the district court erred by determining that it could not
depart below the mandatory minimum sentence, that the court should have
granted her motion for downward departure, and that the district court did not
engage in individualized sentencing. She also argues that her sentence was
substantively unreasonable. We ordinarily lack authority to review a district
court’s refusal to depart below a statutory minimum, but we may review de novo
a district court’s decision that it lacked the authority to do so. United States v.
James, 468 F.3d 245, 246-47 (5th Cir. 2006). The Government did not move for
a downward departure based on substantial assistance under 18 U.S.C.
§ 3553(e), and Tovar was ineligible for a safety valve reduction under § 3553(f)
because she had more than one criminal history point.           See § 3553(f)(1).
Accordingly, the district court correctly determined that it lacked the authority
to grant Tovar’s request for a downward departure, and her sentence was
therefore not unreasonable. See United States v. Krumnow, 476 F.3d 294, 297
(5th Cir. 2007); see also United States v. Harper, 527 F.3d 396, 411 (5th Cir.
2008). To the extent that Tovar argues that the district court should have
required the Government to file a § 3553(e) motion, that argument is without
merit because the Government has the discretion, not the duty, to file such a
motion, and because Tovar has not argued that the Government’s decision not
to file the motion was based on an unconstitutional motive. See Wade v. United
States, 504 U.S. 181, 185-86 (1992).
      AFFIRMED.




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