USA v. Alexandre Dos Anjos Oliveira

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11622
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20876-CMA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDRE DOS ANJOS OLIVEIRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 4, 2016)
Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.
PER CURIAM:
Alexandre Dos Anjos Oliveira appeals his sentence of 38 months of
imprisonment, imposed after he pleaded guilty to attempting to export firearm
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parts without a license. 22 U.S.C. § 2778. Dos Anjos Oliveira challenges the denial
of his motion for a downward departure, United States Sentencing Guidelines
Manual § 2M5.2, cmt. n.1 (Nov. 2014), which he contends made his sentence
procedurally and substantively unreasonable. We affirm.
We lack jurisdiction to review the denial of Dos Anjos Oliveira’s motion for
a downward departure. We cannot review a discretionary decision not to depart
downward “unless the district court incorrectly believed that it lacked the statutory
authority to depart from the guideline range.” United States v. Norris, 452 F.3d
1275, 1282 (11th Cir. 2006). The district court reviewed the commentary of section
2M5.2, considered the parties’ arguments, and questioned the government about
how Dos Anjos Oliveira’s case differed from a defendant for whom the
government had requested a departure. The record establishes that the district court
understood that it could depart and declined to do so.
Dos Anjos Oliveira’s sentence is procedurally and substantively reasonable.
He attempted to export to Brazil four disassembled AR-15 assault rifles by
disguising the parts as tools, toys, or electrical components. The district court
granted the motion of the government to reduce Dos Anjos Oliveira’s offense level
by three points for his acceptance of responsibility, see U.S.S.G. § 3E1.1, and
correctly calculated his adjusted advisory guideline range of 46 to 57 months. Even
so, the district court decided to vary downward from the low end of that range by 8
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months. The district court reasonably determined that a sentence of 38 months of
imprisonment took into account Dos Anjos Oliveira’s lack of a criminal history
and his “depression from which he has been off of work as a military police officer
for some time” and addressed the need to “promote respect for the law and provide
deterrence to others.” See 18 U.S.C. § 3553(a). We cannot say that the district
court abused its discretion by sentencing Dos Anjos Oliveira to a term that is far
below his maximum statutory sentence of 20 years of imprisonment.
We AFFIRM Dos Anjos Oliveira’s sentence.
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