                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 25 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 01-2113
                                                   (D.C. No. CR-00-1440-JP)
    RAMIRO REGALADO-RAMIREZ,                               (D.N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, ANDERSON , Circuit Judge, and          BRORBY ,
Senior Circuit Judge.



         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). The case is

therefore ordered submitted without oral argument.

         Defendant Ramiro Regalado-Ramirez appeals from his sentence after

pleading guilty to possessing with intent to distribute more than 100 kilograms of


*
      This order and judgment is not binding precedent, except under the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.
marijuana in violation of 21 U.S.C. § 841(b)(1)(B). The district court sentenced

defendant to 188 months’ imprisonment and five years of supervised release. We

affirm.

      Because defendant had two prior felony drug convictions, the district court

sentenced defendant as a career offender under U.S. Sentencing Guidelines

Manual § 4B1.1 (2000). This resulted in defendant being sentenced based on a

mandatory criminal history category of VI. Defendant is not challenging the

district court’s decision to categorize him as a career offender or the resulting

automatic placement in criminal history category VI. Instead, the only issue

raised by defendant is whether the district court erred by failing to grant him a

downward departure from category VI under § 4A1.3.

      At the sentencing hearing, defendant moved for a downward departure

under § 4A1.3, claiming that the criminal history category of VI significantly

over-represented the seriousness of his criminal history. Specifically, defendant

claimed that he should not be treated as a career offender because: (1) he has no

prior criminal history except for the two prior felony drug convictions; and (2)

both of the prior convictions involved relatively small amounts of marijuana.   1



The district court denied the request for a downward departure under § 4A1.3,


1
      Defendant also argued for a downward departure based on the fact that he
only received small payments for his role in the prior drug transactions.
However, this factor is not an issue in this appeal.

                                           -2-
finding that the circumstances argued by defendant did not take him out of the

heartland of the career offender category.

       The first issue we must determine is whether we have jurisdiction over this

appeal. As we recently stated:

       Our review of a sentencing court’s refusal to grant a downward
       departure is narrow. [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.

United States v. Browning , 252 F.3d 1153, 1160-61 (10th Cir. 2001) (quotation

omitted). Further, for jurisdiction to exist, “[t]he district court’s statement that it

lacks authority to grant the requested downward departure must be unambiguous.”

Id. at 1161.

       At the sentencing hearing, the district court made two separate rulings.

First, it found that defendant was not entitled to a downward departure based on

the quantity of drugs involved in his prior convictions. In reaching this

determination, the district court correctly noted that, in   United States v. Caldwell ,

219 F.3d 1186, 1193 (10th Cir. 2000), this court stated that “it does not endorse

the proposition that a small quantity of drugs involved in current or prior criminal

offenses, alone, could justify a downward departure.” R., Vol. III, at 7.


                                              -3-
However, the district court then went on to make a purely factual determination

that the quantity of drugs involved in defendant’s prior convictions was not “so

small as to make this case unusual from other career offender cases.”       Id. Thus,

despite its reference to this court’s statement in   Caldwell , the district court did

not make an unambiguous legal determination that it could not, under any

circumstances, depart from the sentencing guidelines based solely on drug

quantities. Consequently, we do not have jurisdiction to review the district

court’s ruling regarding the drug quantity factor.

       Second, the district court determined that “because [] the number of prior

convictions is a factor fully considered by the Sentencing Commission in its

definition of a career offender, and there is nothing exceptional about having just

two prior felony drug convictions[,] [t]his is an impermissible departure factor.”

R., Vol. III, at 7-8. This was an unambiguous statement by the district court that

it did not have the authority to depart from the sentencing guidelines for career

offenders based solely on the fact that a career offender has only two prior felony

convictions. Thus, we have jurisdiction to review the district court’s ruling de

novo. See Browning, 252 F.3d at 1161.

       We agree with the district court that the fact that a career offender has only

two prior felony convictions is, standing alone, an impermissible departure factor.

Under § 4B1.1(3), a career offender is, by definition, a defendant with “at least


                                              -4-
two prior felony convictions of either a crime of violence or a controlled

substance offense.” Consequently, the fact that a career offender has only two

prior felony convictions cannot, by itself, be utilized as a basis for granting a

downward departure under § 4A1.3.         See United States v. Collins , 122 F.3d 1297,

1304 (10th Cir. 1997) (holding that, under § 4A1.3, sentencing court may only

depart from career offender category if defendant’s criminal history significantly

differs from the heartland of § 4B1.1).    2



       The judgment and sentence of the United States District Court for the

District of New Mexico is AFFIRMED.


                                                        Entered for the Court


                                                        Stephen H. Anderson
                                                        Circuit Judge




2
       Of course, to determine whether a defendant is entitled to a downward
departure from the career offender category, the district court must “consider all
of the factual circumstances that bear upon a defendant’s criminal history and
likelihood for recidivism.”   Collins , 122 F.3d at 1304. Without question, the
number of prior convictions, as well as the nature and circumstances of each
conviction, must be the starting point in this analysis. As a result, our
determination that the “number” of prior felony convictions is an impermissible
departure factor is limited to the situation where: (1) a career offender has only
two prior convictions; and (2) the career offender argues for a downward
departure based solely on the fact that he has only two prior convictions.

                                               -5-
