                                                                      F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                    PU BL ISH
                                                                    January 11, 2007
                   UNITED STATES CO URT O F APPEALS               Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT




U N ITED STA TES O F A M ER ICA,

             Plaintiff-A ppellee,
                                                        No. 05-1407
       v.

M O D ESTO IV A N FO N SEC A,

             Defendant-Appellant.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                   FOR T HE DISTRICT OF COLORADO
                       (D .C . No. 04-CR-470-W YD)


Richard Byron Peddie, Richard Byron Peddie, P.C., Longmont, Colorado, for
Defendant-Appellant.

Andrew A. Vogt, Assistant United States Attorney (W illiam J. Leone, United
States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.


Before M URPH Y, ANDERSO N, and O ’BRIEN, Circuit Judges.


M U RPH Y, Circuit Judge.


I. Introduction

      M odesto Ivan Fonseca pleaded guilty to one count of possession with intent

to distribute a mixture containing methamphetamine. Based on the quantity of
actual methamphetamine involved, the Presentence Investigation Report (PSR)

recommended a total offense level of twenty-nine, pursuant to the United States

Sentencing Guidelines (U SSG). Fonseca argued the district court should grant a

downward departure because, as a middleman, he could not have reasonably

foreseen the high purity of the drugs. The district court rejected his request and

sentenced Fonseca to 108 months’ imprisonment, a sentence at the low end of the

applicable Guideline range. Fonseca appeals his sentence, arguing the district

court erroneously failed to recognize its discretion to grant the downward

departure. Because the district court did not unambiguously state it lacked

discretion to grant the requested downward departure, this court lacks jurisdiction

and dismisses the appeal.

II. Background

      Fonseca was arrested for his role in a drug transaction between an

acquaintance and a third party, which was part of an undercover operation

undertaken by the M esa County Drug Task Force. As part of the ongoing

investigation, an undercover officer reached an agreement with Fonseca’s co-

defendant, Devon Powell, to purchase three ounces of methamphetamine.

Fonseca drove Powell to the parking lot where the transaction was to take place,

and Powell exchanged the three ounces of methamphetamine for the agreed-upon

amount in cash. Following the transaction, Powell returned to Fonseca’s vehicle

and both were arrested as they attempted to leave the parking lot. In addition to

                                         -2-
the three ounces sold to the undercover officer, police found another two ounces

of methamphetamine in a fast food container in Fonseca’s car. Subsequent testing

of the drugs concluded the substance sold to the undercover officer totaled 83.2

grams of methamphetamine mixture with a purity level of 89% . The additional

tw o ounces found in the car amounted to 55.5 grams with a purity level of 87% .

Based on these amounts, the total amount of pure methamphetamine involved was

122.2 grams. 1

      Fonseca was indicted on one count of possession with intent to distribute

more than fifty but less than two hundred grams of a mixture containing

m etham phetamine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(viii). He

pleaded guilty to the charge pursuant to a plea agreement in which the

government agreed to recommend a sentence at the bottom of the applicable

Guideline range. The PSR concluded Fonseca’s base offense level was thirty-

two, based on a quantity of 122.2 grams of actual methamphetamine involved in

the offense. USSG § 2D1.1(c)(4). The PSR then recommended a three-level

adjustment for acceptance of responsibility. The resulting total offense level of



      1
         The stipulation of facts in the plea agreement erroneously calculates the
total amount of actual methamphetamine attributed to the additional two ounces
of methamphetamine mixture as 54.2 grams. A proper calculation would produce
a total of 48.285 grams, 87% of 55.5 grams. This error was corrected in the
Presentence Investigation Report, which properly calculated the total amount of
actual methamphetamine involved in both transactions as 122.2 grams. The
miscalculation, however, is immaterial because both calculations produce the
same base offense level under U SSG § 2D1.1.

                                        -3-
twenty-nine, coupled with a criminal history category of III, produced a Guideline

range of 108 to 135 months.

      Prior to sentencing, Fonseca filed a sentencing memorandum in which he

asked the court to sentence him based upon the offense level for the quantity of

methamphetamine mixture involved rather than the quantity of actual

methamphetamine. 2 Because the total methamphetamine mixture amounted to

138.7 grams, such a calculation would reduce his base offense level from thirty-

tw o to twenty-six. See USSG § 2D1.1(c)(7). Fonseca argued the high purity

level of the drugs was not reasonably foreseeable to him because he was merely a

middleman in the transaction. He cited United States v. M endoza, 121 F.3d 510,

513 (9th Cir. 1997), for the proposition that a district court has authority to depart

downward based on a defendant’s lack of control or knowledge of the purity of

the drugs.

      At the sentencing hearing, Fonseca again requested “an adjusted advisory

Guideline level” of twenty-six, based on the lack of foreseeability of the drug

purity. He asserted his role in the transaction was merely to obtain the drugs for

Pow ell from a third party and then to return the sale money to the original source

of the drugs. Given this limited role in the transaction, Fonseca claimed he could

not have foreseen the drugs he was delivering were more than eighty-five percent

      2
       Fonseca also argued he should receive a two-level downward adjustment
because he was only a minor participant in the offense. See USSG §§ 3B1.2(b),
2D1.1(a)(3). At sentencing, however, he conceded this adjustment did not apply.

                                         -4-
pure. In response, the government argued a departure was not warranted because

the high price of the drugs made their high purity reasonably foreseeable to

Fonseca. The district court ultimately declined to grant a downward departure

and adopted the conclusions set forth in the PSR. It then sentenced Fonseca to

108 months’ imprisonment, a sentence at the bottom of the Guideline range.

III. Analysis

      On appeal, Fonseca argues the district court erroneously failed to recognize

it had discretion to grant a downward departure based on a defendant’s lack of

know ledge of drug purity levels. He further contends the error was not harmless

because the district court may have granted the departure if it had known it had

the legal authority to do so. Because this court rejects Fonseca’s necessary

premise that the court believed it did not have discretion to grant the departure on

the asserted grounds, it need not be decided whether such a conclusion would

have been error.

      This court reviews sentences imposed after Booker according to the two-

step approach set forth in United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.

2006). First, this court determines whether the district court properly applied the

Sentencing Guidelines, reviewing its legal conclusions de novo and its factual

findings for clear error. Kristl, 437 F.3d at 1055. In calculating the proper

Guideline range, the district court is still required to consider and apply the

departure provisions in appropriate cases. United States v. Sierra-Castillo, 405

                                         -5-
F.3d 932, 936 n.2 (10th Cir. 2005). A direct challenge to the district court’s

denial of a downward departure is therefore treated as a challenge to the

preliminary application of the Guidelines under the first step of the Kristl

analysis. United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006). If

the Guidelines are properly applied, this court then reviews the ultimate sentence

imposed for reasonableness, applying a rebuttable presumption of reasonableness

for sentences within the properly calculated Guidelines range. Id.

      Even after Booker, “[t]his court has no jurisdiction . . . to review a district

court’s discretionary decision to deny a motion for downward departure on the

ground that a defendant’s circumstances do not warrant the departure.” Sierra-

Castillo, 405 F.3d at 936. This court may review a denial of a downward

departure only if the denial is based on the sentencing court’s interpretation of the

Guidelines as depriving it of the legal authority to grant the departure. United

States v. Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999). In making this

determination, the district court is presumed to recognize its discretion, unless it

unambiguously states it lacks discretion to grant the departure. Sierra-Castillo,

405 F.3d at 936. Ambiguous statements are treated “as though the judge was

aware of his or her legal authority to depart but chose instead, in an exercise of

discretion, not to depart.” Id. (quotation omitted). W hile this court now has

jurisdiction to review a defendant’s final sentence for reasonableness, it




                                          -6-
nevertheless continues to lack jurisdiction to review the discretionary denial of a

downward departure. Chavez-Diaz, 444 F.3d at 1229.

      Fonseca’s argument on appeal is a narrow one. He challenges his sentence

only with respect to the district court’s denial of a downward departure based on

his lack of knowledge of the drug purity levels. He presents no other challenges

to the calculation of the appropriate Guidelines range, and he does not argue the

ultimate sentence imposed was unreasonable. 3 W here the defendant declines to

challenge reasonableness and instead challenges only the denial of a downward

departure in applying the Guidelines, as Fonseca does here, the pre-Booker rules

still apply. See Sierra-Castillo, 405 F.3d at 936. Thus, this court has jurisdiction

over Fonseca’s appeal only if the sentencing court unambiguously stated it did not

have discretion to grant the downward departure on the grounds urged by Fonseca

at sentencing. See id.




      3
         This court notes it would have jurisdiction to review Fonseca’s challenge
if his argument had instead been framed in terms of a challenge to the
reasonableness of his sentence. See United States v. Chavez-Diaz, 444 F.3d 1223,
1228-29 (10th Cir. 2006) (noting jurisdiction to review district court’s refusal to
depart downward as part of a challenge to the reasonableness of the sentence).
W hile this may initially appear to be a formalistic distinction, Fonseca’s reply
brief suggests he intentionally narrowed his claim in this manner to avoid the
presumption of reasonableness set forth in United States v. Kristl, 437 F.3d 1050,
1055 (10th Cir. 2006). See Aplt. Reply Br. at 1-2 (characterizing the
government’s brief as “designed to shunt M r. Fonseca’s case into reasonableness
testing under Kristl, where Fonseca must face virtually insurmountable
presumptions and jurisdictional hurdles on his way to relief”).

                                         -7-
      In this case, statements made by the district court at sentencing indicate it

rejected Fonseca’s argument for a downward departure not because it believed it

had no authority to grant the departure, but because it determined a departure was

not warranted in this case. In response to Fonseca’s argument that he could not

have foreseen the high purity of the drugs, the district court stated:

      [W ]hat [the facts] suggest . . . is that the defendant had a significant
      role in getting these drugs. He also knew that he was getting drugs
      probably that were pretty pure . . . . [A]bsent some evidence from a
      witness who was involved in this, I have trouble buying your argument,
      counsel. It just doesn’t jibe. W hat you want, you want me to give him
      a lower sentence, but this reason you’re giving me doesn’t make a lot
      of sense to me.

This statement belies Fonseca’s contention that his argument was rejected as a

matter of law . To the contrary, it suggests the district court considered the facts

of this particular case and simply rejected Fonseca’s argument on the merits. By

noting evidence of Fonseca’s ignorance was lacking, the court implicitly

recognized the possibility that the result may have been different if his argument

had been supported by credible evidence. 4 Given Fonseca’s “significant role” in

the offense, the district court found no reason to believe his unsubstantiated claim

he did not know the purity of the drugs. Based on this assessment of the facts,

the district court then determined Fonseca w as not entitled to a downward

      4
         Although Fonseca argues his statement at sentencing supports his claimed
ignorance as to drug purity, the weight of the evidence is irrelevant to the
question of whether the district court believed it had the legal authority to depart.
Even if there was sufficient evidence to support a downward departure, the
district court was not required to grant one.

                                          -8-
departure. Evaluating the propriety of such a discretionary determination is

beyond this court’s jurisdiction. See United States v. Sims, 428 F.3d 945, 963

(10th Cir. 2005) (“Because the court clearly knew it had authority to depart on

these grounds but simply elected not to do so in this case, we cannot entertain

these issues on appeal.”).

      The district court’s recognition of its legal authority to grant the requested

departure is further demonstrated by the absence of any challenge to this authority

by the government or the court. Aside from a brief reference in Fonseca’s

sentencing memorandum, the issue was never raised or discussed. Indeed, the

government’s argument at sentencing recognized the practice of other judges in

reducing sentences based on lack of foreseeability of drug purity. Rather than

arguing this point, however, the government instead focused on the facts of the

case, contending the high price of the drugs gave Fonseca reason to be aware of

their high purity. Likew ise, the court was particularly concerned w ith the facts,

finding it relevant whether the drug purity was in fact reasonably foreseeable

under these circumstances. Thus, the record supports the conclusion that all

parties involved, including the court, assumed the authority of the court to grant

the departure if it determined one was warranted.

      In support of his argument that the district court failed to recognize its

discretion to grant a downward departure, Fonseca directs this court’s attention to




                                          -9-
two statements made by the district court at sentencing. The district court first

asked:

         M y question is if somebody’s acquiring illegal drugs . . . aren’t they
         stuck with the consequences of w hat they acquire? I mean . . . if it’s
         purer rather than less pure, aren’t they stuck with those
         consequences? I’m trying to understand why I should give your
         client a break because he didn’t realize the drugs he procured would
         be as pure as they turned out to be.

Later in the sentencing hearing, the court again explained its position regarding

Fonseca’s argument for a downward departure:

         It would seem to me if someone is approached by somebody to get
         illegal drugs, they say, okay, I know where I can get illegal drugs,
         they then go get the illegal drugs and sell the illegal drugs . . . aren’t
         they stuck with the reasonable conclusions of their actions, which
         would include that the actual drugs when tested turn out to be very
         pure, which drive up the G uideline levels under the advisory
         Guidelines?

Fonseca argues the use of the phrases “stuck with the consequences” and “stuck

with the reasonable conclusions of their actions” indicates a perceived lack of

legal authority to grant the requested departure.

         Contrary to Fonseca’s assertions, however, neither of these statements

constitutes an unambiguous statement that the court lacks legal authority to grant

the departure. Rather, they show only the district court’s belief that the alleged

lack of foreseeability under circumstances such as these does not justify a

downward departure. Nothing in these statements indicates an understanding that

the court was not legally authorized to grant a downward departure if it had found



                                             -10-
one to be warranted. In fact, the court’s first question explicitly asks why the

downward departure should be granted to this particular defendant. If the district

court believed it had no legal authority to grant the departure in any case, the

specific rationale for giving Fonseca “a break” would be irrelevant.

      At most, the statements made by the district court are ambiguous. As noted

above, ambiguous statements regarding the authority of the district court to depart

from the Guidelines are interpreted as if the court were aware of the authority to

depart. Fortier, 180 F.3d at 1231. The statements in this case can easily be

distinguished from those made by the district court in M endoza, the case on which

Fonseca relies for the proposition that a sentencing court has authority to depart

based on the defendant’s lack of knowledge of drug purity. In that case, the

district court stated, “[T]o make it clear, the Court believes that she has no

discretion to depart downward on the argument counsel has made.” M endoza, 121

F.3d at 512. Likewise, the district court in Sims clearly explained, “The Court

views this fact [that the defendant’s offense conduct involves a serious threat of

violence] as disqualifying it from permitting a reduction based on diminished

capacity.” Sim s, 428 F.3d at 963. These are the kind of unambiguous statements

required by this court and lacking in this case. 5 Because the district court did not

      5
       In an effort to avoid the rule that an unambiguous statement is required,
Fonseca essentially argues that because the evidence supported his claimed lack
of knowledge, the district court’s denial of the downward departure “can only be
assumed” to be based on its perceived lack of discretion. Such an assumption,
however, would directly contradict this circuit’s precedent requiring an

                                         -11-
unambiguously state it lacked the discretion to grant the requested downward

departure, this court has no jurisdiction to review the denial of this departure.

IV. Conclusion

      For the foregoing reasons, this court dismisses the appeal of the sentence

imposed by the district court.




unambiguous statement. W hile this court agrees with Fonseca that “no particular
shibboleth” is required, it nevertheless requires defendants to point to some
statements by the district court clearly evincing a perceived lack of authority.

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