[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-13372

Non-Argument Calendar

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

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

GILBERTO ASTUDILLO-CARBAJAL, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(October 3, 2019)

Before TJOFLAT, JORDAN, and BRANCH, Circuit Judges.

PER CURIAM: 

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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 AstudilloCarbajal 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 drug1 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). 

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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 

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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)).

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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.

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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.

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