     Case: 09-20596     Document: 00511124885         Page: 1     Date Filed: 05/28/2010




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

                                                  FILED
                                                                           May 28, 2010
                                     No. 09-20596
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

JOEL MIRANDA JIMINEZ, also known as Joel Miranda Jimenez, also known
as Joe Jimenez, also known as Joel Miranda Ramirez, also known as Alfredo
Salgado,

                                                  Defendant-Appellant.


                    Appeal from the United States District Court
                for the Southern District of Texas, Houston Division
                              USDC No. 4:08-CR-512-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Joel Miranda Jiminez pleaded guilty to illegally reentering the United
States after having been removed following conviction for an aggravated felony.
He seeks automatic re-sentencing because the district court erroneously
believed that it was constrained by our precedent to deny a cultural assimilation
downward departure because of his extensive, violent criminal history.



        *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 09-20596    Document: 00511124885 Page: 2        Date Filed: 05/28/2010
                                 No. 09-20596

      At sentencing, the district court conducted a thorough review of the
sentencing factors outlined in 18 U.S.C. § 3553(a) and the relevant case law.
The district court concluded that Jiminez’s motion for a downward departure
should be denied in light of his history of violent offenses. Contrary to Jiminez’s
assertion, however, the district court did not state that our prior precedent
prevented it from granting the motion.        Rather, it treated those cases as
persuasive authority and concluded that a downward departure was not
warranted in this case.     The district court’s denial was not “based on the
mistaken belief that the court lacked discretion to depart.” United States v.
Garay, 235 F.3d 230, 232 (5th Cir. 2000). Accordingly, we lack jurisdiction to
review the district court’s decision that a downward departure was unwarranted.
United States v. Thames, 214 F.3d 608, 612 (5th Cir. 2000).
      The judgment of the district court is AFFIRMED.




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