           Case: 18-13372   Date Filed: 10/03/2019   Page: 1 of 6


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13372
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:17-cr-00031-JDW-PRL-3



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,


                                  versus



GILBERTO ASTUDILLO-CARBAJAL,

                                                        Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (October 3, 2019)

Before TJOFLAT, JORDAN, and BRANCH, Circuit Judges.

PER CURIAM:
                Case: 18-13372       Date Filed: 10/03/2019       Page: 2 of 6


       Gilberto Astudillo-Carbajal appeals his total 204-month sentence for

conspiracy to possess with intent to distribute methamphetamine, possession of a

firearm in furtherance of a drug-trafficking offense, possession of a firearm by an

illegal alien, and illegal re-entry. He pleaded guilty to each offense without a plea

agreement.

       Astudillo-Carbajal’s only claim on appeal is that the district court erred in

denying his motion for a downward departure from the sentencing-guidelines

range based on his mental and emotional conditions. 1 Because the district court

understood its authority to grant the requested relief, we lack jurisdiction to review

the district court’s decision.

                                               I.

       In May 2017, Astudillo-Carbajal was arrested in connection with a Drug

Enforcement Agency (“DEA”) investigation. He had been previously arrested for

drug-related offenses and removed from the U.S. A grand jury charged Astudillo-

Carbajal with: (1) conspiracy to possess with intent to distribute 500 grams or more

of a mixture containing a detectable amount of methamphetamine, in violation of

21 U.S.C. § 841(b)(1)(A); (2) possession of a firearm in furtherance of a drug-




1
  Astudillo-Carbajal states in his brief that the “trial court erred by denying [his] motion for
downward departure or variance at [his] sentencing hearing.” (emphasis added). Because
Astudillo-Carbajal failed to develop any argument regarding a variance on appeal, he abandoned
the issue. See United States v. Woods, 684 F.3d 1045, 1064 n. 23 (11th Cir.2012).
                                               2
              Case: 18-13372     Date Filed: 10/03/2019    Page: 3 of 6


trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i); (3) possession of a

firearm by an alien illegally and unlawfully in the United States, in violation of 18

U.S.C. §§ 922(g)(5)(A) and 924(a)(2); and (4) illegal reentry, in violation of 8

U.S.C. § 1326(a) and (b)(1). Astudillo-Carbajal pleaded guilty without a plea

agreement to each crime.

      A United States Probation Officer prepared a Presentence Investigation

Report (“PSI”) containing Astudillo-Carbajal’s advisory Guidelines range.

Astudillo-Carbajal’s base level was 36 under U.S.S.G. § 2D1.1, because the

offense involved the equivalent of 42,245 kilograms of marijuana. Because

Astudillo-Carbajal’s offense involved the importation of methamphetamine or its

manufacture from chemicals that he knew were unlawfully imported, his offense

level was not subject to an adjustment under U.S.S.G § 3B1.2, and instead was

enhanced by two. Astudillo-Carbajal received a three-level reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1(a)–(b), bringing his total

offense level to 35. His prior criminal history put him in a criminal history

category of IV. With a criminal history category of IV and total offense level of

35, the probation officer determined Astudillo-Carbajal’s advisory Guidelines

range at 235 to 293 months.

      According to the PSI, Astudillo-Carbajal did not disclose that he had any

history of mental or emotional problems. And the probation officer did not


                                          3
                   Case: 18-13372        Date Filed: 10/03/2019       Page: 4 of 6


identify any factors that would warrant a departure from the applicable guideline

range.

          Prior to the sentencing hearing, Astudillo-Carbajal moved for a downward

departure for mental health reasons under U.S.S.G § 5H1.3.2 At sentencing,

Astudillo-Carbajal made several objections to the guidelines range calculation, and

the district court ultimately adjusted his criminal history score to a category III,

resulting in a guidelines range of 210 to 262 months. With regard to his motion for

a downward departure due to mental health reasons, the district court considered a

forensic psychological evaluation of Astudillo-Carbajal by Dr. Valerie McClain.

During the hearing, Astudillo-Carbajal’s counsel summarized Dr. McClain’s report

as diagnosing Astudillo-Carbajal with four specific mental issues: “Major

depression, [post-traumatic stress disorder (“PTSD”)] . . . panic disorder and

alcohol abuse.” He went on to explain Dr. McClain’s findings in more detail,



2
    U.S.S.G. § 5H1.3 in its entirety provides:

          Mental and emotional conditions may be relevant in determining whether a
          departure is warranted, if such conditions, individually or in combination with
          other offender characteristics, are present to an unusual degree and distinguish the
          case from the typical cases covered by the guidelines. See also Chapter Five, Part
          K, Subpart 2 (Other Grounds for Departure).

          In certain cases a downward departure may be appropriate to accomplish a
          specific treatment purpose. See § 5C1.1, Application Note 6.

          Mental and emotional conditions may be relevant in determining the conditions of
          probation or supervised release; e.g., participation in a mental health program (see
          §§ 5B1.3(d)(5) and 5D1.3(d)(5)).
                                                   4
               Case: 18-13372     Date Filed: 10/03/2019   Page: 5 of 6


including that Astudillo-Carbajal suffered from the effects of severe trauma, both

physical and emotional, in his youth, that he only received a fourth-grade

education, and that he had a “low average” intelligence level. These mental and

emotional issues, Astudillo-Carbajal’s counsel submitted, “certainly could be an

effect on someone’s behavior.” The government, in turn, argued that nothing in

the report revealed conditions that “are present to a degree that is unusual or

distinguishes this case from other cases.”

      The district court denied the motion for downward departure. The district

court explained its reason for its ruling as follows:

      I find that based on the background of the defendant and the
      evaluation by Dr. McClain that although he may have mental and
      emotional conditions, PTSD and alcohol use disorder and major
      depression, that these conditions even in combination are not present
      to an unusual degree nor do they distinguish this case from typical
      cases.

      It’s not uncommon, in other words, to have a defendant before the
      court faced with serious felony charges to have depression qualities or
      conditions of depression. Certainly alcohol abuse is common. And
      even PTSD is not uncommon, particularly when defendants are
      coming from countries like this defendant where drug cartels are
      present and there are instances of violence.

      I don't believe therefore that Dr. McClain’s diagnosis warrants a
      downward departure. It will be considered, however, in determining
      the appropriate sentence; whether at variance with the guidelines or
      not, I’m not sure.




                                             5
               Case: 18-13372     Date Filed: 10/03/2019    Page: 6 of 6


Having noted that the sentencing guidelines were advisory and not binding, the

district court imposed a below-Guidelines sentence of 204 months’ imprisonment.

This appeal followed.

                                          II.

      We review our subject matter jurisdiction de novo. United States v. Moran,

778 F.3d 942, 982 (11th Cir. 2015). “This Court lacks jurisdiction to review a

district court’s discretionary refusal to grant a downward departure, unless the

district court incorrectly believed that it lacked the authority to depart from the

guideline range.” Id. We assume that the sentencing court properly understood its

authority absent a record indication to the contrary. Id. This assumption can be

defeated if the court specifically stated it believed it was unauthorized to issue the

requested departure. United States v. Fairman, 947 F.2d 1479, 1481 (11th Cir.

1991).

      Here, the district court did not express a belief that it lacked authority to

depart downward from the guidelines. To the contrary, the court recognized that

the sentencing guidelines “although an important consideration, are advisory.”

Accordingly, we lack jurisdiction to review the district court’s discretionary refusal

to deny Astudillo-Carbajal’s motion for a downward departure. Moran, 778 F.3d

at 982. We affirm his sentence.

      AFFIRMED.


                                           6
