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

                                                                 FILED
                                                               February 20, 2008
                               No. 07-40127
                            Conference Calendar            Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JOSE GONZALES-MEDINA

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 5:06-CR-1295-3


Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Jose Gonzales-Medina (Gonzales) appeals his 26-month sentence imposed
following his guilty plea conviction for transporting an undocumented alien for
private gain. Gonzales argues that in light of the holding in United States v.
Booker, 543 U.S. 220 (2005), the district court should have departed downward
and the sentence imposed was excessive.        Gonzales did not make these




      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-40127

arguments in the district court. Thus, review is for plain error. United States
v. Olano, 507 U.S. 725, 731-37 (1993).
      A court of appeals is generally without jurisdiction to review a sentencing
court’s refusal to grant a downward departure when its decision is based upon
a determination that a departure was not warranted on the facts of the case
before it. United States v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). A
refusal to depart downward is a violation of the law only if the district court’s
refusal is based on the mistaken belief that the court lacked discretion to depart.
United States v. Cooper, 274 F.3d 230, 248 (5th Cir. 2001). The district court
recognized its authority to depart, but indicated that the facts presented did not
warrant a downward departure. Thus, this court lacks jurisdiction to review the
district court’s denial of a downward departure in this case.
      The court retains jurisdiction to review “whether the district court’s
imposition of a guideline sentence instead of a non-guideline sentence was
reasonable.” United States v. Nikonova, 480 F.3d 371, 375 (5th Cir.), cert.
denied, 128 S. Ct. 163 (2007). If the sentencing judge imposes a sentence within
a properly calculated guidelines range, the sentence is entitled to a presumption
of reasonableness. Rita v. United States, 127 S. Ct. 2456, 2462 (2007).
      The district court considered Gonzales’s arguments for a lower sentence
and rejected them. The district court imposed a sentence within the properly
calculated guidelines range, and Gonzales has failed to show that the sentence
is unreasonable.    See Gall v. United States, 128 S. Ct. 586, 602 (2007).
Accordingly, the sentence is AFFIRMED.




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