                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT                            June 17, 2004

                                                                  Charles R. Fulbruge III
                               No. 03-41239                               Clerk
                             Summary Calendar


                        UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                   versus

                         JAVIER AGUILAR-ALVAREZ,

                                                        Defendant-Appellant.


               Appeal from the United States District Court
                    for the Southern District of Texas
                              (M-03-CR-458-1)


Before BARKSDALE, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Javier Aguilar-Alvarez appeals his sentence on his guilty-plea

conviction for illegal reentry following deportation, in violation of

8 U.S.C. § 1326(a) & (b).     Aguilar contends that the district court

erred in determining it lacked authority under § 5K2.0 of the

Sentencing Guidelines to grant a downward departure based upon

Aguilar’s   early    entry   of   his   guilty   plea    (two    hours     after

arraignment).     A district court’s application of the Guidelines is

reviewed de novo; its findings of fact, for clear error.                   E.g.,

United States v. Ocana, 204 F.3d 585, 588 (5th Cir.), cert. denied,


     *
        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this opinion should not be published and is not precedent except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.
531 U.S. 880 (2000). Because this case involves whether the district

court correctly determined it lacked authority to grant the downward

departure under § 5K2.0, we have jurisdiction.    E.g., United States

v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir.), cert. denied, 528

U.S. 894 (1999).

        Referencing 18 U.S.C. § 3553(b), Guidelines § 5K2.0 provides

that the sentencing court may impose a sentence outside the range

established by the applicable guidelines, if it finds “that there

exists an aggravating or mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a

sentence different from that described”.    18 U.S.C. § 3553(b).   Some

authority exists in the commentaries to the guidelines, as well as

from other courts that have addressed the issue, that the district

court has the authority to depart under § 5K2.0 in an exceptional

case.    See United States v. Shah, 263 F. Supp. 2d 10, 36-37 (D.D.C.

2003); United States v. Dethlefs, 123 F.3d 39, 46 (1st Cir. 1997); §

5K2.0, comment. (n.3(B)(i))(Nov. 2003), comment. (Nov. 2002).

        Aguilar’s base offense level was reduced for acceptance of

responsibility.    Assuming, without deciding, that the district court

had the discretion under § 5K2.0 to depart, Aguilar has not alleged

any facts that would warrant a departure.

                                                          AFFIRMED




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