                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 16 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                    No. 01-4231
                                                   (D.C. No. 2:00-CR-580-C)
    FRANCISCO MANUEL                                       (D. Utah)
    GONZALEZ-LOPEZ, also known as
    Francisco Manuel Gonzalez,

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before PORFILIO , ANDERSON , and BALDOCK , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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.
      Defendant Francisco Manuel Gonzalez-Lopez appeals from his forty-six

month sentence, asserting that the district court erroneously denied his motion for

a downward departure and, alternatively, that the district court improperly applied

an enhanced sentence based on factors that were not alleged in his indictment.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and

we affirm.

                                         I.

      Gonzalez-Lopez was deported to Mexico in 1999 after being convicted

in Utah of burglary and aggravated assault, aggravated felonies as defined under

8 U.S.C. § 1101(a)(43). On October 25, 2000, Gonzalez-Lopez was again

arrested in Utah and charged with three misdemeanors. After obtaining

information regarding Gonzalez-Lopez’s identity, the INS sought and received

an indictment charging him with illegal re-entry of a deported alien.

Gonzalez-Lopez was arrested on January 11, 2001.

      Gonzalez-Lopez pled guilty to the charge, but moved the court for

a downward departure based on cultural assimilation. The court denied that

motion and sentenced Gonzalez-Lopez to forty-six months, based in large part

on a sixteen-level sentence enhancement stemming from his previous deportation

after a felony conviction. This appeal followed.




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                                          II.

       “Our review of a sentencing court’s refusal to grant a downward departure

is narrow.”   United States v. Browning , 252 F.3d 1153, 1160 (10th Cir. 2001).

Indeed, “[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). As this court stated in   Browning ,

       [C]ourts of appeals cannot exercise jurisdiction to review a
       sentencing court’s refusal to depart from the sentencing guidelines
       except in the very rare circumstance that the district court states
       that it does not have any authority to depart from the sentencing
       guideline range for the entire class of circumstances proffered by
       the defendant . . . . This exception does not apply when a sentencing
       court concludes under the defendant’s particular circumstances      that
       it does not have the authority to depart.

Browning , 252 F.3d at 1160-61 (quotation omitted). Gonzalez-Lopez argues that

the district court erroneously believed it only had the authority to depart

downward based on cultural assimilation if Gonzalez-Lopez grew up in the United

States and had lived in the country for many years. To the contrary, the

sentencing transcript reveals that the district court recognized that it had the

authority to grant a downward departure based on cultural assimilation, but




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elected not to do so.   1
                            While the district court used, by example, other factual

situations to explain its decision that Mr. Gonzalez-Lopez’s situation was not

beyond the heartland of typical cases justifying a downward departure, it did not

limit itself to those particular factors as providing a bar to its discretionary

authority. The transcript contains a number of additional references to

Gonzalez-Lopez’s situation demonstrating that the court understood its authority

to grant a downward departure, if it chose to do so. Thus, this court does not

have jurisdiction to review the district court’s refusal to depart.

                                             III.

       Gonzalez-Lopez next argues that his prior felony conviction cannot be used

to enhance his sentence because it is not a part of the offense of conviction.

“We review the district court’s interpretation and application of the Sentencing

Guidelines de novo .” United States v. Martinez-Villalva       , 232 F.3d 1329,



1
       Gonzalez-Lopez urges downward departure under the authority of       United
States v. Lipman , 133 F.3d 726, 730 (9th Cir. 1998), one of at least two decisions
specifically recognizing cultural assimilation as an allowable justification for
downward departure. See also United States v. Rodriguez-Montelongo       , 263 F.3d
429, 433 (5th Cir. 2001) (“[W]e hold that cultural assimilation is a permissible
basis for downward departure.”). Each of these decisions, however, has
recognized that departures based on cultural assimilation are akin to consideration
of family and community ties, which are discouraged factors under § 5H1.6 of the
Guidelines, and which must be extraordinary before a departure may be justified.
See Rodriguez-Montelongo , 263 F.3d at 433-34; Lipman , 133 F.3d at 730; see
also United States v. Gallegos , 129 F.3d 1140, 1146 (10th Cir. 1997) (addressing
family circumstances).

                                              -4-
1332 (10th Cir. 2000). Specifically, Gonzalez-Lopez does not challenge the

sufficiency of the indictment, but instead argues “that his sentence exceeds the

maximum penalty for the offense of conviction.” Aplt. Br. at 8. We disagree.

Gonzalez-Lopez was indicted for, and pled guilty to a violation of 8 U.S.C.

§ 1326 prohibiting the re-entry of removed aliens. Subsection (b) of § 1326

increases the maximum penalty to twenty years in prison for any alien “whose

removal was subsequent to a conviction for commission of an aggravated felony.”

8 U.S.C. § 1326(b)(2). Gonzalez-Lopez’s conviction for burglary and assault

places him squarely within that subsection. Gonzalez-Lopez also correctly

concedes that his argument is negated by the Supreme Court’s decision in

Almendarez-Torres v. United States   , 523 U.S. 224 (1998), which held that a prior

felony conviction under § 1326(b)(2) is merely a sentencing factor based on

recidivism. Almendarez-Torres , 523 U.S. at 235. Gonzalez-Lopez was clearly

aware of the potential maximum penalty when he signed his plea agreement,

and the district court did not err by enhancing his base offense level to an

amount that was well below that statutory maximum.




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     The judgment of the United States District Court for the District of Utah

is AFFIRMED.


                                                  Entered for the Court



                                                  Bobby R. Baldock
                                                  Circuit Judge




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