                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 27 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 02-1288
 v.
                                                  (D.C. No. 02-CR-15-D)
                                                      (D. Colorado)
 MARIO JON GALE, also known as
 Jose Manuel Rodriguez,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, HENRY and HARTZ, Circuit Judges.


      Mario Jon Gale pled guilty to one count of unlawful reentry into the United

States after having previously been deported, in violation of 8 U.S.C. § 1326(a)

and (b)(2). The district court sentenced him to 70 months’ imprisonment, the

minimum sentence within the applicable range under the United States Sentencing



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
Guidelines. Mr. Gale now appeals the district court’s refusal to grant him a

downward departure for cultural assimilation. We exercise jurisdiction pursuant

to 28 U.S.C. § 1291 and AFFIRM.

      On appeal, Mr. Gale’s counsel filed an Anders brief and moved to withdraw

as appellate counsel. See Anders v. California, 386 U.S. 738, 744 (1967). In the

Anders brief, counsel argues that Mr. Gale’s sentence was not imposed contrary

to the law, as a result of an incorrect application of the Sentencing Guidelines, or

in excess of the applicable Guideline range, and that Mr. Gale’s appeal is

therefore wholly without merit. We have fully examined the proceedings as

required by Anders and concluded that Mr. Gale’s appeal is indeed without merit.

Moreover, we lack jurisdiction to review a district court’s failure to depart

downward in sentencing absent a claim that the court misunderstood its authority

to depart. United States v. Coddington, 118 F.3d 1439, 1441 (10th Cir. 1997).

We find no such misunderstanding on the part of the district court in this case.

      For the foregoing reasons, counsel’s motion to withdraw is GRANTED and

Gale’s conviction is AFFIRMED.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge


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