                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            JUN 11 1999
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,
          Plaintiff - Appellee,                         No. 98-4137
 v.                                               (D.C. No. 97-CR-435-K)
 ARTURO ESPINOZA-RAMIREZ,                                (D. Utah)
          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.



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

The case is therefore ordered submitted without oral argument.

      Defendant-Appellant Arturo Espinoza-Ramirez appeals his sentence,

objecting to the district court’s refusal to depart downward under the United

States Sentencing Guidelines. At issue is whether we have jurisdiction to review



      *
       This order and judgment is not binding precedent, except under the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.
his appeal.

      Defendant pleaded guilty to aggravated reentry into the United States as a

deported alien in violation of 8 U.S.C. § 1326. Before sentencing, Defendant

filed a motion for a downward departure under U.S.S.G. § 5K2.0, arguing that his

family ties, cultural assimilation, and need for medical treatment in this country

combined to remove his case from the heartland of illegal reentry cases and

warranted a downward departure. The district court denied the motion and

sentenced Defendant at the low end of the guideline range to seventy-seven

months’ imprisonment and three years’ supervised release.

      Because Defendant’s counsel believes that this court has no jurisdiction to

review a trial court’s refusal to depart downward from the sentencing guidelines,

he filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which

he set forth Defendant’s argument and moved to withdraw from representing

Defendant. Defendant has not filed a separate brief or statement of the issues on

appeal. The Government argues that Defendant’s claim on appeal is not

reviewable because the district court recognized its discretion to depart but

refused to do so.

      In United States v. Castillo, 140 F.3d 874, 887-88 (10th Cir. 1998), this

court clarified when it has jurisdiction to review a sentencing court’s refusal to

depart downward from the sentencing guidelines. Castillo clearly held that a


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defendant has no right to appeal a court’s refusal to depart downward except

“where the sentencing court concludes that an entire class of circumstances never

constitutes the basis for a downward departure.” Id. at 888. In other words, we

have jurisdiction to review a refusal to depart downward only if the sentencing

court believed that it had no discretion to depart downward based on the class of

factors proffered by the defendant.

      Having reviewed the law and both parties’ arguments, including the

Government’s concession that the court had the authority to depart, the district

court stated that it was “unconvinced that either the medical request, the support

request, the cultural assimilation request or the combination of those requests

meets the requirements for a downward departure in this instance.” R., Vol. II at

10. From this language, we conclude that the district court understood that it had

the discretion to depart downward but found that the facts of this case were not

sufficient to justify a departure.

      Accordingly, because the sentence imposed is properly within the guideline

range, see Castillo, 140 F.3d at 888, we GRANT defense counsel’s motion to

withdraw and DISMISS the appeal for lack of jurisdiction.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge

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