While duress can be a basis for a downward departure, the government correctly notes that we lack jurisdiction to review the district court's failure to depart on this basis. See United States v. Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003) (a district court's refusal to grant a downward departure is unreviewable on appeal unless the district court believed erroneously that it lacked the authority to grant a downward departure). Here, the district court clearly recognized its authority to depart downwardly based on duress but did not believe Dawkins's case warranted such a departure.
For purposes of jurisdiction, we "resolve that ambiguity in favor of [Lopez-Zamora]." United States v. Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003). B. FRAMEWORK FOR ANALYZING DISCRETION TO DEPART
Section 2L1.2(b)(1)(A) takes into account differences between prior convictions by placing them along "a graduated sentencing enhancement scheme." United States v. Ortega, 358 F.3d 1278, 1280 (11th Cir. 2003) (citing U.S.S.G.App. C amend. 632); see also U.S.S.G. § 2L1.2(b)(1)(A)(E) (providing for offense levels ranging from 4 levels to 16 levels depending upon the type of prior conviction). Furthermore, the Sentencing Commission "determined that a drug trafficking crime for which the sentence exceeded thirteen months was serious enough to warrant a sixteen level enhancement."
The denial of a downward departure request is not reviewable unless the district court "erroneous[ly] belie[ved] it lacked the authority to grant one." United States v. Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003). There is no indication the district court believed it lacked the authority to grant a downward departure, so the district court's decision is not reviewable.
But if "the district court's statements reflect an ambiguity concerning its ability to depart," we resolve the ambiguity in the defendant's favor. United States v. Ortega, 358 F.3d 1278, 1279 & n.3 (11th Cir. 2003). If a district court does not find a basis for a sentencing variance, the court must impose a sentence within the guidelines range "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a" different sentence. 18 U.S.C. § 3553(b)(1).
Section 2L1.2(b)(1)(A) takes into account differences between prior convictions by placing them along "a graduated sentencing enhancement scheme." United States v. Ortega, 358 F.3d 1278, 1280 (11th Cir. 2003) (citing U.S.S.G. app. C, amend. 632); see also U.S.S.G. § 2L1.2(b)(1)(A)-(E) (providing for enhancements ranging from 4 to 16 levels depending upon the type of prior conviction). The Sentencing Commission also determined that a prior conviction for a violent crime warranted a 16-level enhancement.
We do not have jurisdiction to review Erland's claim that the district court erred in refusing to grant his request for a downward departure, pursuant to U.S.S.G. § 4A1.3(b)(1), because the district court recognized that it had authority to depart but chose not to do so based on the particular circumstances of Erland's case. See United States v. Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003) (stating that a district court's refusal to grant a downward departure is unreviewable on appeal unless the district court erroneously believed it lacked authority to grant a downward departure). Erland also argues that the district court erred in applying a two-level increase in his offense level because his offense involved the violation of his 1993 child support order.
But the district court did not believe that it lacked authority to grant McDowell a downward departure on this basis, and we cannot review the district court's refusal to grant the departure. See United States v. Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003) (a district court's refusal to grant a downward departure is unreviewable on appeal unless the district court believed erroneously that it lacked the authority to grant a downward departure). The district court noted that it had considered McDowell's documented history of mental and emotional problems along with other sentencing factors in section 3553(a) in sentencing McDowell below the guidelines range.
We do not normally review the district court's denial of a downward departure, except in cases where the district court incorrectly believed that it did not have the authority to depart. United States v. Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003). "[W]e assume that the sentencing court understood it had authority to depart downward" when the record does not indicate any ambivalence.
See, e.g., United States v. Puche, 350 F.3d 1137 (11th Cir. 2003) (affirming the conspiracy conviction of the defendant and remanding for resentencing on a basis unrelated to this case). A district court's refusal to grant a downward departure is ordinarily unreviewable on appeal. United States v. Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003) (per curiam); United States v. Torrealba, 339 F.3d 1238, 1247 (11th Cir. 2003); United States v. Liss, 265 F.3d 1220, 1230 (11th Cir. 2001); United States v. Rudisill, 187 F.3d 1260, 1265-66 (11th Cir. 1999). An exception exists where the district court believed it lacked the authority to depart.