                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 30 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-5238
                                                    (D.C. No. 99-CR-8-BU)
    ROBBY DEAN POOLE, also known                         (N.D. Okla.)
    as Stacy Lee Haag, also known as
    Eric Ludgood,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY ,
Senior Circuit Judge.



         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      This order and judgment is not binding precedent, except under the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 Robby Dean Poole entered a plea of guilty to bank fraud and

aiding and abetting, in violation of 18 U.S.C. § 1344(1), (2). He was sentenced to

a term of thirty-three months’ imprisonment and three years’ supervised release in

accordance with the applicable United States Sentencing Guidelines. He now

appeals the district court’s denial of his motion for a downward departure based

on his testimony that he endured extreme sexual abuse during childhood.

      It is well-settled that this court has jurisdiction to review a “refusal to

depart downward only when ‘the district court refused to depart because it

erroneously interpreted the Guidelines as depriving it of the power to depart based

on the proffered circumstances.’”      United States v. Rowen , 73 F.3d 1061, 1063

(10th Cir. 1996) (quoting     United States v. Barrera-Barron   , 996 F.2d 244, 245

(10th Cir. 1993)). “”[U]nless the judge’s language unambiguously states that he

does not believe he has authority to downward depart, we will not review his

decision.’” Id. (quoting United States v. Rodriguez , 30 F.3d 1318, 1319

(10th Cir. 1994)).

      Here, a review of the record does not reveal any statement on the part of

the district court concerning a belief that it lacked discretion to downward depart

from the Guidelines.   1
                           In ruling on Poole’s departure motion, the court stated that


1
       We note, however, that USSG § 5H1.12 generally prohibits downward
departure based on “a disadvantaged upbringing.” Although we have recognized
                                                                  (continued...)

                                            -2-
it “realize[d] that it may have the authority to depart and do a downward

departure in this case, but based upon the criminal history in this case over –

spanning over several years and considering the type of crime this is, the Court is

going to deny the downward departure.” R., Vol. V at 34-35. We therefore

conclude that we lack jurisdiction to review the district court’s decision.

      For the foregoing reasons, we DISMISS Poole’s appeal of the district

court’s sentencing decision. The motion to withdraw as counsel, filed by

R. Thomas Seymour, is GRANTED.        2




                                                      Entered for the Court


                                                      Bobby R. Baldock
                                                      Circuit Judge




1
 (...continued)
that other federal courts have allowed downward departure in instances of
extreme childhood abuse, we have not made a similar holding.   United States v.
Browning , 252 F.3d 1153, 1160 (10th Cir. 2001) (declining to consider the issue,
for lack of jurisdiction).
2
     In this appeal, Mr. Seymour filed a brief pursuant to    Anders v. California,
386 U.S. 738 (1967).

                                          -3-
