                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         NOV 24 2000
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                        No. 99-3380
v.                                                  (District of Kansas)
                                                  (D.C. No. 99-CR-20027)
JEFFERY L. TAYLOR,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


      After examining the briefs and 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); 10th Cir. R. 34.1(G). This court

therefore honors the parties’ requests and orders the case 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       This order and judgment is not binding precedent, except under the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.
      Jeffery Taylor pleaded guilty to three counts of possessing, with intent to

distribute, cocaine base in violation of 21 U.S.C. § 841(a)(1). The district court

sentenced Taylor to a 188-month term of imprisonment, a sentence at the absolute

low end of the sentencing range set out in the United States Sentencing

Guidelines (“U.S.S.G.”). This case is before the court on counsel’s brief filed

pursuant to Anders v. California, 386 U.S. 738 (1967) and accompanying request

to withdraw. 1 After a searching review of the record, we conclude that this court

lacks jurisdiction to review the sentencing issue set forth in counsel’s Anders

brief 2 and that the appellate record reveals no other non-frivolous issues.

Accordingly, this court grants counsel leave to withdraw and dismisses this

appeal for lack of jurisdiction.

      In March of 1999, Taylor was indicted on four counts of possessing cocaine

base with intent to distribute in violation of 21 U.S.C. § 841(a)(1), one count of


      1
         Although counsel did not file a separate motion to withdraw, this court
will treat counsel’s Anders brief as containing such a motion.  See Anders v.
California , 386 U.S. 738, 744 (1967) (“[I]f counsel finds his case to be wholly
frivolous, after a conscientious examination of it, he should so advise the court
and request permission to withdraw. That request must, however, be accompanied
by a brief referring to anything in the record that might arguably support the
appeal.”).
      2
        After the filing of counsel’s Anders brief, this court advised Taylor that
counsel had filed a brief stating a belief that the appeal was frivolous and
requesting permission to withdraw from the case. The letter further informed
Taylor that he had 30 days to respond to counsel’s    Anders brief. Taylor never
filed a response.

                                         -2-
possessing a weapon following a felony conviction in violation of 18 U.S.C. §

922(g), and one count of carrying a firearm during and in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(c). Taylor eventually entered an

unconditional guilty plea to three of the possession-with-intent-to-distribute

counts. In calculating Taylor’s sentence under the U.S.S.G., the district court

concluded that Taylor had a criminal history category of VI by operation of

U.S.S.G. § 4B1.1. 3 It is uncontested that Taylor falls within the parameters of §

4B1.1 and Taylor never objected to the applicability of § 4B1.1 at sentencing. In

fact, the only objection Taylor lodged at sentencing related to a proposed increase

in his base offense level for obstruction of justice, an objection which the district

court sustained. Otherwise, Taylor’s counsel specifically acknowledged at the

sentencing hearing that the presentence report was factually accurate and legally

correct with respect to the U.S.S.G. calculations.




      3
       Section 4B1.1 provides, in relevant part, as follows:
      A defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant committed the instant
      offense of conviction, (2) the instant offense of conviction is a felony
      that is either a crime of violence or a controlled substance offense,
      and (3) the defendant has at least two prior felony convictions of
      either a crime of violence or a controlled substance offense. . . . A
      career offender’s criminal history category in every case shall be
      Category VI .
U.S.S.G. § 4B1.1 (emphasis added).

                                         -3-
      On appeal, Taylor asserts that the district court erred when it failed to sua

sponte depart downward from the otherwise applicable U.S.S.G. sentencing range

based upon the following two factors: (1) the passage of time between the

offenses used to define Taylor as a career offender under § 4B1.1 and the

offenses of conviction; and (2) Taylor’s past and continuing cooperation with

authorities. Setting aside the fact that this departure argument is raised for the

first time on appeal and therefore waived, 4 this court has repeatedly noted, as

counsel recognizes in his Anders brief, that “[a]bsent the trial court’s clear

misunderstanding of its discretion to depart, or its imposition of a sentence which

violates the law or incorrectly applies the guidelines, we have no jurisdiction to

review a refusal to depart.” United States v. Coddington, 118 F.3d 1439, 1441

(10th Cir. 1997) (quotation omitted) (collecting cases). A review of the entire

appellate record, with particular reference to the transcript of the sentencing

hearing, reveals nothing to indicate the district court believed it lacked the power

to depart downward on those bases belatedly advanced by Taylor on appeal. Nor

is there any indication that the sentence was based upon an impermissible factor.

Accordingly, this court lacks jurisdiction to review the district court’s “refusal” to

depart downward sua sponte.


      4
       It should be noted, however, that Taylor’s counsel did raise both issues in
successfully arguing that the district court should sentence Taylor at the absolute
low end of the U.S.S.G. sentencing range.

                                          -4-
      This court hereby GRANTS counsel leave to withdraw and DISMISSES

the appeal for lack of jurisdiction.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




                                        -5-
