*

 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should not be published and is not precedent except under the limited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.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-21165

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ALBERTO LOPEZ-MURCIA, also known as

CARLOS LOPEZ,

Defendant-Appellant.

______________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CR-124)

______________________________________________________________

January 2, 1997

Before DAVIS, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Appellant Carlos Alberto Lopez-Murcia pled guilty to

possession of heroin with intent to distribute. At his

sentencing hearing, Lopez-Murcia sought a downward departure

under U.S.S.G. § 5K2.12 based upon coercion and duress. The
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district court denied Lopez-Murcia’s request for a downward

departure, sentencing him to fifty-seven months imprisonment.

Appellant argues that the district court erred in denying his

request for a downward departure because it employed an

objective rather a subjective standard in evaluating

appellant’s claims of coercion and duress. We affirm.

I. FACTUAL BACKGROUND

Lopez-Murcia is a citizen of Colombia, and he was a

resident of that country until his arrest in the United

States. At his re-arraignment, Lopez-Murcia told the district

court that while living in Colombia, he entered into a

business venture to sell jewelry. During the course of this

enterprise, jewelry valued at approximately $25,000 was

allegedly stolen from him. Lopez-Murcia’s business “partner,”

Victor Moreno, threatened to murder Lopez-Murcia, his wife, or

his daughter if he did not pay back the value of the jewelry.

Shortly thereafter, Lopez-Murcia was approached by individuals

who offered to pay him to transport drugs into the United

States. Lopez-Murcia stated that he believed the only way to

ensure the physical safety of his family was to transport

drugs in order to pay off his debt to Moreno. 

From October 1995 to June 13, 1996 (the day he was

arrested), Lopez-Murcia allegedly made six trips to the United

States. The first two trips were “dry runs.” On the last
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trip, he was arrested by agents of the Drug Enforcement

Agency.

At Lopez-Murcia’s sentencing hearing, the district

court accepted as true all of Lopez-Murcia’s statements about

the threats, coercion, and duress. Lopez-Murcia urged the

court to determine if he was acting under coercion and duress

from his subjective point of view. The district court denied

Lopez-Murcia’s request for a downward departure, concluding

that it was unreasonable for Lopez-Murcia to continue to

traffic drugs for six trips during a period of nine months

without devising some scheme to extricate himself and his

family from the perceived threat.

II. ANALYSIS

We have jurisdiction to review a district court’s

refusal to depart downward from the guidelines only if the

refusal is a violation of the law. See United States v.

Lugman, 1997 WL 730763, at *2 (5th Cir. Nov. 25, 1997); United

States v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997). A

refusal to depart violates the law only if the district court

refuses to grant a downward departure under the mistaken

assumption that it does not have the authority to do so. See

id. We have no jurisdiction if the district court’s refusal

to depart is based upon its factual determination that a

downward departure is unwarranted. See id.
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Section 5K2.12 of the sentencing guidelines states

that the district court “may” depart downward from the

applicable guideline range “[i]f the defendant committed the

offense because of serious coercion, blackmail or duress,

under circumstances not amounting to a complete defense.”

U.S.S.G. § 5K2.12. “The extent of the decrease ordinarily

should depend on the reasonableness of the defendant’s actions

and on the extent to which the conduct would have been less

harmful under the circumstances as the defendant believed them

to be.” Id. Although this circuit has yet to address the

issue of the standard to be applied in evaluating a claim

under U.S.S.G. § 5K2.12, other circuits have held that the

district court should consider the subjective mental state of

the defendant. See, e.g., United States v. Henderson-Durand,

985 F.2d 970, 976 (8th Cir. 1993); United States v. Johnson,

956 F.2d 894, 898 (9th Cir. 1992); see also United States v.

Willis, 38 F.3d 170, 175-76 (5th Cir. 1994) (discussing this

issue in dicta). We review a district court’s legal

interpretation of the guidelines de novo. See United States

v. Adams, 996 F.2d 75, 78 (5th Cir. 1993).

Assuming, without deciding, that subjective

considerations should be taken into account in determining

whether to grant a downward departure under § 5K2.12, we note

that the district court accepted as true Lopez-Murcia’s
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version of events leading to his arrest. That is, the

district court understood the threats, coercion, and duress

upon which Lopez-Murcia based his § 5K2.12 claim to be real.

Nonetheless, the district court found that the causal

connection between Lopez-Murcia’s offense and the coercive

influence he described was too attenuated to grant a downward

departure. The district court believed that Lopez-Murcia

should have extricated himself from his situation at some

point during the nine month period that he trafficked drugs.

We find that the district court considered Lopez-Murcia’s

situation from his subjective point of view and, even from

this favorable viewpoint, concluded that his factual

circumstances did not merit a downward departure. Therefore,

we need not reach the legal issue of whether a defendant’s

subjective mental state should be taken into account under §

5K2.12.

Because the district court was not acting under the

mistaken assumption that it did not have the authority to

grant a downward departure, we lack jurisdiction to review the

district court’s sentencing decision.

AFFIRMED. 
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