United States v. Rodriguez-Villanueva

Case: 21-11035 Document: 00516325894 Page: 1 Date Filed: 05/19/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit FILED

May 19, 2022

No. 21-11035 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee, versus

Miguel Jesus Rodriguez-Villanueva,

Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:20-CR-555-1

Before Southwick, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

Miguel Jesus Rodriguez-Villanueva appeals the 21-month sentence imposed subsequent to his conviction for illegal reentry after having been previously removed, pursuant to 8 U.S.C. § 1326(a). His sole argument on

Case: 21-11035 Document: 00516325894 Page: 2 Date Filed: 05/19/2022

No. 21-11035 appeal is that we have jurisdiction to review the district court’s denial of his motion for a downward departure.

Rodriguez-Villanueva concedes that the argument is foreclosed by United States v. Lucas, 516 F.3d 316, 350–51 (5th Cir. 2008), and United States v. Alaniz, 726 F.3d 586, 627 (5th Cir. 2013), but he wishes to preserve it for further review. The Government has moved, without opposition, for summary affirmance.

There is nothing in the record to indicate that the district court erroneously believed that it did not have the authority to depart. See United States v. Fillmore, 889 F.3d 249, 255 (5th Cir. 2018). Therefore, we do not have jurisdiction to review the denial of the motion for a downward departure. See id. Accordingly, this appeal is DISMISSED for lack of jurisdiction. The motion for summary affirmance is DENIED. The Government’s alternative motion for an extension of time is, likewise, DENIED.