     Case: 12-40218     Document: 00512036162         Page: 1     Date Filed: 10/29/2012




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

                                                                            FILED
                                                                         October 29, 2012
                                     No. 12-40218
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PLACIDO MOLINA, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:11-CR-530-1


Before REAVLEY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Placido Molina, Jr., challenges his 46-month sentence, imposed following
his guilty-plea conviction on one count of attempted exportation of defense
articles from the United States. Molina first asserts that the district court erred
by misapprehending its authority to impose a downward departure pursuant to
application note one of U.S.S.G. § 2M5.2. In addition, he contends that his
sentence was both procedurally and substantively unreasonable.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40218      Document: 00512036162      Page: 2   Date Filed: 10/29/2012

                                    No. 12-40218

         We lack jurisdiction to review a district court’s refusal to depart downward
from the applicable guidelines range unless the district court mistakenly
believes that it does not have the authority to depart. See United States v. Sam,
467 F. 3d 857, 861 (5th Cir. 2006). The record itself “must indicate that the
district court held such an erroneous belief.” United States v. Valencia-Gonzales,
172 F.3d 344, 346 (5th Cir. 1999). Nothing in the record indicates the district
court mistakenly believed that it lacked the authority to grant a downward
departure pursuant to § 2M5.2. Rather, the record demonstrates that the court
did not believe a departure was warranted. Therefore, to the extent Molina
challenges the denial of the downward departure, we may not review the
contention. See Sam, 467 F.3d at 861.
         Because Molina did not object to the reasonableness of the imposed
sentence, we review for plain error. To establish plain error, Molina must show
a forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If such a showing is
made, we have the discretion to correct the error but will generally do so only if
it seriously affects the fairness, integrity, or public reputation of the judicial
proceedings. Id.
         Molina asserts that the district court committed procedural error by
improperly calculating the guidelines range, based on its misunderstanding of
its authority to depart downward pursuant to the commentary of § 2M5.2. A
miscalculation of the guidelines range may constitute a procedural error. See
Gall v. United States, 552 U.S. 38, 51 (2007). However, the record shows that
the district court understood its authority to depart but determined that
Molina’s actions had the potential to be harmful to national security concerns.
This court lacks jurisdiction to review the decision not to depart. See Sam, 467
F.3d at 861. Molina has not shown that the district court committed procedural
error.



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   Case: 12-40218    Document: 00512036162      Page: 3    Date Filed: 10/29/2012

                                  No. 12-40218

      Likewise, Molina’s assertion of substantive unreasonableness focuses on
the failure of the district court to depart downward. He contends that the
district court failed to give significant weight to the commentary to § 2M5.2 and
that the court’s reference to a shooting in El Paso that did not involve Molina
constituted reliance on an irrelevant factor. Molina maintains that his lack of
criminal history and his stated reasons for bringing the weapons to Mexico –
protection of his family – established that his actions did not pose a security risk
and that a sentence below the guidelines range was warranted. He asserts that
the relatively minor nature of his offense when compared to more serious crimes
that would fall under the same guideline resulted in an unwarranted sentencing
disparity.
      The district court considered Molina’s request for a lower sentence but
elected to impose a within-Guidelines sentence. A within-Guidelines sentence
is presumptively reasonable. See, e.g., United States v. Newson, 515 F.3d 374,
379 (5th Cir. 2008). Although Molina contends that the presumption should not
apply because of the court’s failure to consider the commentary to § 2M5.2, the
court did consider it but concluded that the facts of the case did not warrant a
departure.    Molina has not shown that his sentence is substantively
unreasonable nor has he rebutted the presumption of reasonableness that
attaches to his within-Guidelines sentence.          See, e.g., United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Accordingly, he has failed
to show the district court plainly erred by imposing the within-Guidelines
sentence. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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