     Case: 10-20663     Document: 00511562825         Page: 1     Date Filed: 08/05/2011




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

                                                                            FILED
                                                                           August 5, 2011

                                       No. 10-20663                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

SERGIO PEREZ-GUTIERREZ, also known as Sergio Gutierrez Perez, also
known as Sergio Perez Gutierrez,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-182-1


Before KING, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Sergio Perez-Gutierrez appeals the district court’s
refusal to reduce his Guidelines sentence to take into account time spent in state
custody for a related offense. Perez-Gutierrez asserts that the district court
erred by refusing to consider reducing Perez-Gutierrez’s sentence based on time
spent in state custody after he was discovered by immigration officials. For the
foregoing reasons, we AFFIRM.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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      In 1999, Perez-Gutierrez was convicted of two counts of aggravated
robbery and was sentenced to 10 years in prison. After serving approximately
7 years, Perez-Gutierrez was paroled, released directly into immigration custody,
and deported to Mexico. Nearly two years later, Perez-Gutierrez was pulled over
in Houston, Texas, for running a red light. His parole for the robbery offenses
was revoked due to his illegal presence in the United States, and he served 24
months in state custody on parole revocation. Perez-Gutierrez was then turned
over to immigration custody and, a month later, to federal custody, where he
pleaded guilty to one count of illegal reentry into the United States following
conviction of an aggravated felony under 8 U.S.C. § 1326. The Guidelines
sentencing range for the illegal reentry charge was 46-57 months in prison. The
district court departed downward by 5 months, giving Perez-Gutierrez credit for
the one month he spent in immigration custody, and taking into consideration
the length of time that had passed since his prior offenses as well as his “effort
to get his life on track.” The district court refused to consider the time Perez-
Gutierrez spent in state custody. The court ordered a 41-month sentence.
      Perez-Gutierrez argues that we should reverse and remand for re-
sentencing, so that the district court can reconsider whether his sentence should
be reduced by the amount of time he spent in state custody. Under United
States v. Barrera-Saucedo, 385 F.3d 533 (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.” Id. at 537. Perez-Gutierrez
contends that the district court held the mistaken belief that it did not have the
authority to grant a downward departure based on time spent in state custody,
and thus committed reversible error.
      “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

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error of law.” Barrera-Saucedo, 385 F.3d. at 535 (citing United States v. Buck,
324 F.3d 786, 797 (5th Cir. 2003)). “‘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) (quoting
United States v. Yanez-Huerta, 207 F.3d 746, 748 (5th Cir. 2000)). “Thus, this
Court may review the district court’s decision only if it refused a downward
departure on the mistaken conclusion that the Guidelines do not permit such a
departure.” Barrera-Saucedo, 385 F.3d at 535 (citing Buck, 324 F.3d at 797-98);
accord United States v. Lucas, 516 F.3d 316, 350 (5th Cir. 2008); United States
v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997).         Accordingly, “we have no
jurisdiction if the court’s refusal is based on its determination that departure is
not warranted on the facts of the case.” Palmer, 122 F.3d at 222. Thus, we may
not review the district court’s denial of downward departure unless we first find
that the court “held a mistaken belief that the Guidelines do not give it the
authority to depart.” United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006).
We review interpretation and application of the guidelines de novo. Id.; Barrera-
Saucedo, 385 F.3d at 535; United States v. Delgado-Martinez, 564 F.3d 750, 751
(5th Cir. 2009).
      The central dispute arises from an interaction between the district court
and Perez-Gutierrez’s defense counsel:
      THE COURT:         Right. State custody two years on parole
                         revocation, and then in federal custody since
                         March 5, 2010?
      [Counsel]:         Right.
      THE COURT:         Okay.
      [Counsel]:         So here’s what I’m saying: The Guidelines
                         suggest 46 to 57. I think minus a month for ICE
                         custody is 45. Since he has 24 months of state
                         custody plus 20 - - if I’m adding that right.
                         Anyway, I calculate it - -

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      THE COURT:         Wait a minute, stop. What is it that with this
                         state custody he gets credit for his parole
                         revocation on armed robbery, he gets credit for
                         that in this case? What’s that argument? I don’t
                         even get it.
      [Counsel]:         Okay, two things:
                         Number one, I presented three other
                         reasons to reduce his sentence. So I am not
                         just saying, “Oh, give him credit.” That’s
                         not the point here.
      THE COURT:         Because you already know that’s not a good
                         argument to me.
      [Counsel]:         Other than the fact that the Fifth Circuit has
                         said in Barrera-Saucedo that the Court can take
                         that into account. I’m not just making this stuff
                         up.
      THE COURT:         I understand, but we’ve had this argument like a
                         million times.
      [Counsel]:         I’m not going to stop having the discussion.
      THE COURT:         Okay, I’m not going to stop doing it, then. As
                         long as we both under[stand] where we are. I
                         don’t get that as a point for credit. I don’t get it.
                         That’s just me. Maybe somebody else does.
Defense counsel, in response, urged that “[t]his guy just got two more years on
his robbery for basically doing exactly what he’s standing in front of the Court
for, being in the country illegally” and that, in light of the additional factors
Perez-Gutierrez had presented, the district court should give him credit for the
time in state custody.
      Based on the court’s statement that it did not “get it” with respect to
Perez-Gutierrez’s request for departure based on time served in state custody,
Perez-Gutierrez contends that the district court refused his request for
downward departure because it did not understand that it had the authority to
grant such a reduction. The Government’s position is that the record clearly


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                                       No. 10-20663
establishes that the trial court understood it could grant a downward departure
based on time served in state custody and, instead, merely declined to do so. We
agree with the Government that the district court understood that it could grant
a downward departure, but did not find departure warranted on the facts of the
case.
        Based on our reading of the record as a whole,1 it appears that the district
court did understand its authority to depart downward on the basis of time
served in state custody. The court’s statement that it didn’t “even get it” with
respect to Perez-Gutierrez’s argument does not indicate that the court did not
understand its authority to give credit. Rather, the reference to “get[ting] it”
seems to be the court’s way of expressing skepticism and seeking clarification
regarding Perez-Gutierrez’s argument. It is no indication that the court did not
understand Barrera-Saucedo.             This is further supported by the court’s
statements that it “underst[oo]d” and “had this argument like a million times.”
        Perez-Gutierrez cites three cases in support of his arguments that we have
jurisdiction and that we should remand for re-sentencing. See United States v.
Simmons, 568 F.3d 564 (5th Cir. 2009); United States v. Coffman, 178 F. App’x
389 (5th Cir. 2006); and United States v. Johnson, 33 F.3d 8 (5th Cir. 1994). All
three are distinguishable. In Simmons, we concluded that it was “clear from
th[e] record” that the district court held the erroneous belief that it could not
depart. 568 F.3d at 569-70. Here, we find no such erroneous belief. In Coffman,
the district court imposed a higher sentence under the erroneous belief that it
could give Coffman credit for time served in state custody via a separate order.
178 F. App’x at 392.         Such order was ineffective, and thus the case was

        1
        Cf. United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995) (“When determining
whether the sentencing court merely refused to exercise its discretionary power to depart, we
consider the totality of the record and the sentencing court’s actions as reflected therein.”).




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                                 No. 10-20663
remanded for the limited purpose of determining whether Coffman’s sentence
should be reduced by the amount of time spend in state custody. Id. No such
error has occurred here. Lastly, in Johnson, the court appeared to have a self-
imposed policy of wholly deferring to the Government’s recommendation in
U.S.S.G. § 5K1.1 departures, despite the fact that that recommendation was “but
one factor to be considered in th[e] equation.” 33 F.3d at 9-10. Johnson, though,
was remanded because the court,        through its policy of deferring to the
government, improperly abdicated its duty to conduct an independent review of
multiple factors. Id. The record does not indicate such an abdication here.
      Because we conclude that the district court understood that it could depart
downward on the basis of time served in state custody and merely exercised its
discretion in declining to do so, Perez-Gutierrez’s sentence is AFFIRMED.




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