Case: 20-40062      Document: 00515575721         Page: 1    Date Filed: 09/23/2020




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

                                                                              FILED
                                                                      September 23, 2020
                                  No. 20-40062                           Lyle W. Cayce
                                Summary Calendar                              Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Alejandro De La Torre,

                                                          Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 7:19-CR-1639-1


   Before Jolly, Elrod, and Graves, Circuit Judges.
   Per Curiam:*
          Alejandro De La Torre pleaded guilty to making false statements or
   representations with regard to firearms records. He requested a downward
   departure pursuant to U.S.S.G. § 5K2.0(a)(3), asserting primarily that
   although he illegally purchased firearms, he did so with the purpose of selling


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40062      Document: 00515575721           Page: 2    Date Filed: 09/23/2020




                                     No. 20-40062


   them to law-abiding citizens in Mexico who needed the weapons for personal
   protection. The district court sentenced him within the guidelines range to
   the statutory maximum sentence of 60 months in prison and three years of
   supervised release.
          On appeal, De La Torre contends that the district court erred in not
   departing downward under § 5K2.0(a)(3). He acknowledges that we have
   held that we lack jurisdiction to review the denial of a downward departure,
   but he argues that the basis for this jurisdictional limitation was eliminated by
   the decision in United States v. Booker, 

(2005), and related cases.
          Post-Booker, we have held that we lack jurisdiction to review the denial
   of a downward departure unless the denial was based on the district court’s
   erroneous belief that it lacked the authority to depart. United States v. Lucas,
   

, 350-51 (5th Cir. 2008); United States v. Alaniz, 

,
   627 (5th Cir. 2013). De La Torres does not argue that the district court
   denied his motion for a downward departure because the court mistakenly
   believed that it had no authority to depart. Therefore, we lack jurisdiction to
   review the district court’s denial of the motion for a downward departure.
   See 

.
          The judgment of the district court is AFFIRMED.




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