IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20663

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SERGIO PEREZ-GUTIERREZ, also known as Sergio Gutierrez Perez, also

known as Sergio Perez Gutierrez,

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:10-CR-182-1

Before KING, DAVIS, and GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Sergio Perez-Gutierrez appeals the district court’s

refusal to reduce his Guidelines sentence to take into account time spent in state

custody for a related offense. Perez-Gutierrez asserts that the district court

erred by refusing to consider reducing Perez-Gutierrez’s sentence based on time

spent in state custody after he was discovered by immigration officials. For the

foregoing reasons, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

August 5, 2011

Lyle W. Cayce

Clerk

 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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In 1999, Perez-Gutierrez was convicted of two counts of aggravated

robbery and was sentenced to 10 years in prison. After serving approximately

7 years, Perez-Gutierrez was paroled, released directly into immigration custody,

and deported to Mexico. Nearly two years later, Perez-Gutierrez was pulled over

in Houston, Texas, for running a red light. His parole for the robbery offenses

was revoked due to his illegal presence in the United States, and he served 24

months in state custody on parole revocation. Perez-Gutierrez was then turned

over to immigration custody and, a month later, to federal custody, where he

pleaded guilty to one count of illegal reentry into the United States following

conviction of an aggravated felony under 8 U.S.C. § 1326. The Guidelines

sentencing range for the illegal reentry charge was 46-57 months in prison. The

district court departed downward by 5 months, giving Perez-Gutierrez credit for

the one month he spent in immigration custody, and taking into consideration

the length of time that had passed since his prior offenses as well as his “effort

to get his life on track.” The district court refused to consider the time PerezGutierrez spent in state custody. The court ordered a 41-month sentence.

Perez-Gutierrez argues that we should reverse and remand for resentencing, so that the district court can reconsider whether his sentence should

be reduced by the amount of time he spent in state custody. Under United

States v. Barrera-Saucedo, 385 F.3d 533 (5th Cir. 2004), “it is permissible for a

sentencing court to grant a downward departure to an illegal alien for all or part

of time served in state custody from the time immigration authorities locate the

defendant until he is taken into federal custody.” Id. at 537. Perez-Gutierrez

contends that the district court held the mistaken belief that it did not have the

authority to grant a downward departure based on time spent in state custody,

and thus committed reversible error.

“This Court has jurisdiction to review a district court’s refusal to grant a

downward departure from the Guidelines only if the refusal was based on an

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error of law.” Barrera-Saucedo, 385 F.3d. at 535 (citing United States v. Buck,

324 F.3d 786, 797 (5th Cir. 2003)). “‘A refusal to grant a downward departure

is a violation of law only if the court mistakenly assumes that it lacks authority

to depart.’” United States v. Cooper, 274 F.3d 230, 248 (5th Cir. 2001) (quoting

United States v. Yanez-Huerta, 207 F.3d 746, 748 (5th Cir. 2000)). “Thus, this

Court may review the district court’s decision only if it refused a downward

departure on the mistaken conclusion that the Guidelines do not permit such a

departure.” Barrera-Saucedo, 385 F.3d at 535 (citing Buck, 324 F.3d at 797-98);

accord United States v. Lucas, 516 F.3d 316, 350 (5th Cir. 2008); United States

v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997). Accordingly, “we have no

jurisdiction if the court’s refusal is based on its determination that departure is

not warranted on the facts of the case.” Palmer, 122 F.3d at 222. Thus, we may

not review the district court’s denial of downward departure unless we first find

that the court “held a mistaken belief that the Guidelines do not give it the

authority to depart.” United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006).

We review interpretation and application of the guidelines de novo. Id.; BarreraSaucedo, 385 F.3d at 535; United States v. Delgado-Martinez, 564 F.3d 750, 751

(5th Cir. 2009).

The central dispute arises from an interaction between the district court

and Perez-Gutierrez’s defense counsel:

THE COURT: Right. State custody two years on parole

revocation, and then in federal custody since

March 5, 2010? 

[Counsel]: Right.

THE COURT: Okay.

[Counsel]: So here’s what I’m saying: The Guidelines

suggest 46 to 57. I think minus a month for ICE

custody is 45. Since he has 24 months of state

custody plus 20 - - if I’m adding that right. 

Anyway, I calculate it - -

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THE COURT: Wait a minute, stop. What is it that with this

state custody he gets credit for his parole

revocation on armed robbery, he gets credit for

that in this case? What’s that argument? I don’t

even get it.

[Counsel]: Okay, two things:

Number one, I presented three other

reasons to reduce his sentence. So I am not

just saying, “Oh, give him credit.” That’s

not the point here.

THE COURT: Because you already know that’s not a good

argument to me.

[Counsel]: Other than the fact that the Fifth Circuit has

said in Barrera-Saucedo that the Court can take

that into account. I’m not just making this stuff

up.

THE COURT: I understand, but we’ve had this argument like a

million times.

[Counsel]: I’m not going to stop having the discussion.

THE COURT: Okay, I’m not going to stop doing it, then. As

long as we both under[stand] where we are. I

don’t get that as a point for credit. I don’t get it. 

That’s just me. Maybe somebody else does.

Defense counsel, in response, urged that “[t]his guy just got two more years on

his robbery for basically doing exactly what he’s standing in front of the Court

for, being in the country illegally” and that, in light of the additional factors

Perez-Gutierrez had presented, the district court should give him credit for the

time in state custody.

Based on the court’s statement that it did not “get it” with respect to

Perez-Gutierrez’s request for departure based on time served in state custody,

Perez-Gutierrez contends that the district court refused his request for

downward departure because it did not understand that it had the authority to

grant such a reduction. The Government’s position is that the record clearly

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establishes that the trial court understood it could grant a downward departure

based on time served in state custody and, instead, merely declined to do so. We

agree with the Government that the district court understood that it could grant

a downward departure, but did not find departure warranted on the facts of the

case.

Based on our reading of the record as a whole, it appears that the district 1

court did understand its authority to depart downward on the basis of time

served in state custody. The court’s statement that it didn’t “even get it” with

respect to Perez-Gutierrez’s argument does not indicate that the court did not

understand its authority to give credit. Rather, the reference to “get[ting] it”

seems to be the court’s way of expressing skepticism and seeking clarification

regarding Perez-Gutierrez’s argument. It is no indication that the court did not

understand Barrera-Saucedo. This is further supported by the court’s

statements that it “underst[oo]d” and “had this argument like a million times.”

Perez-Gutierrez cites three cases in support of his arguments that we have

jurisdiction and that we should remand for re-sentencing. See United States v.

Simmons, 568 F.3d 564 (5th Cir. 2009); United States v. Coffman, 178 F. App’x

389 (5th Cir. 2006); and United States v. Johnson, 33 F.3d 8 (5th Cir. 1994). All

three are distinguishable. In Simmons, we concluded that it was “clear from

th[e] record” that the district court held the erroneous belief that it could not

depart. 568 F.3d at 569-70. Here, we find no such erroneous belief. In Coffman,

the district court imposed a higher sentence under the erroneous belief that it

could give Coffman credit for time served in state custody via a separate order.

178 F. App’x at 392. Such order was ineffective, and thus the case was

Cf. United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995) (“When determining 1

whether the sentencing court merely refused to exercise its discretionary power to depart, we

consider the totality of the record and the sentencing court’s actions as reflected therein.”). 

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remanded for the limited purpose of determining whether Coffman’s sentence

should be reduced by the amount of time spend in state custody. Id. No such

error has occurred here. Lastly, in Johnson, the court appeared to have a selfimposed policy of wholly deferring to the Government’s recommendation in

U.S.S.G. § 5K1.1 departures, despite the factthat that recommendation was “but

one factor to be considered in th[e] equation.” 33 F.3d at 9-10. Johnson, though,

was remanded because the court, through its policy of deferring to the

government, improperly abdicated its duty to conduct an independent review of

multiple factors. Id. The record does not indicate such an abdication here.

Because we conclude that the district court understood that it could depart

downward on the basis of time served in state custody and merely exercised its

discretion in declining to do so, Perez-Gutierrez’s sentence is AFFIRMED.

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