United States v. Jovani Felix-Lopez

Jovani Clemente Felix-Lopez appeals his 21-month sentence. He contends the district court erred when it did not grant a Guideline departure under U.S.S.G. § 5K2.0 and that his sentence is substantively unreasonable. We affirm.

The district court correctly determined that it had authority as a matter of law to grant a downward departure under U.S.S.G. § 5K2.0. Felix-Lopez claims the district court erred because it made a legal determination that his deportation and separation from family were not authorized grounds for departure under U.S.S.G. § 5K2.0. “In the absence of a clear expression to the contrary, we assume that the district court is aware of its discretionary authority to depart.” United States v. Gonzalez-Perez, 472 F.3d 1158, 1162 (9th Cir.2007). The record establishes the court viewed its decision not to grant the downward departure as an exercise of its discretion. The trial court stated that Felix-Lopez had not shown that his case possessed the “type of circumstances” that warranted a departure. Therefore, the court did not misapprehend its authority to depart downward and properly exercised its discretion in calculating the sentencing range under the…