United States v. Sanchez-Valencia, 148 F.3d 1273

United States v. Sanchez-Valencia

148 F.3d 1273

11th Cir.

1998

Check Treatment

Angela PEREZ-PRIEGO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

United States Court of Appeals, Eleventh Circuit.

Aug. 5, 1998.

1273

Angela Perez-Priego, Orlando, FL, pro se.

Before GODBOLD, HILL and FAY, Senior Circuit Judges.

PER CURIAM:

Angela Perez-Priego appeals the magistrate judge‘s report recommending that her civil-rights complaint be dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

The magistrate‘s report and recommendation had not been adopted by the district court at the time that Perez-Priego filed the notice of appeal and therefore the report and recommendation is not final and appealable. See 28 U.S.C. § 636(b)(1);

Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1066-67 (11th Cir. 1982). Likewise, Perez-Priego‘s notice of appeal was not valid to perfect the appeal as of the date of the district court‘s judgment. See ; . Accordingly, this appeal is DISMISSED for lack of jurisdiction.¹

UNITED STATES of America, Plaintiff-Appellee, v. Ramiro SANCHEZ-VALENCIA, Defendant-Appellant.

No. 98-8167

United States Court of Appeals, Eleventh Circuit.

Aug. 5, 1998.

Non-Argument Calendar.

Brian Mendelsohn, Federal Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.

Janet S. King, U.S. Atty., Charysse L. Alexander, Asst. U.S. Atty., Atlanta, GA, for Plaintiff-Appellee.

Before GODBOLD, HILL and FAY, Senior Circuit Judges.

PER CURIAM:

Ramiro Sanchez-Valencia appeals his 66-month sentence for illegally re-entering the United States after being deported.

On appeal, Sanchez-Valencia argues that the district court erroneously believed that it did not have the authority to downwardly depart on the basis of cultural assimilation, and that such a departure was warranted.

This Court has held that a district court‘s discretionary refusal to depart downward is not appealable, unless the refusal was based on an erroneous belief that the court did not have the statutory authority to depart from the guideline range.

United States v. Fossett, 881 F.2d 976, 979 (11th Cir. 1989).

We have reviewed the transcripts, the presentence investigation report, the judgment and commitment order, and all other relevant portions of the record. Those, together with the briefs of the parties, demonstrate that the sentencing judge was aware of his authority to depart in light of

United States v. Lipman, 133 F.3d 726 (9th Cir. 1998).

While it is possible to determine from this record that the district court was aware of its authority, it would facilitate review if sentencing judges would state on the record that they believe they have or do not have the authority to depart.

AFFIRMED.

Notes

We examine our jurisdiction sua sponte even though neither party has raised the issue.