                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          JAN 8 2001
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                   No. 00-8023
                                                   (D.C. No. 99-CR-117)
 ROBERTO ULLOA-PORRAS,                                   (D. Wyo.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.



       Defendant Roberto Ulloa-Porras appeals from his forty-six month sentence,

asserting that the sentencing judge erroneously denied his motion for a downward

departure and, in the alternative, that the United States Sentencing Guidelines are

unconstitutional. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a) and we affirm.




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
                                     Background

      Mr. Roberto Ulloa-Porras, a citizen of Mexico, first entered the United

States in 1975. In 1995, he was convicted of delivery of a controlled substance in

violation of Wyo. Stat. Ann. § 35-7-1031, an aggravated felony.     See 8 U.S.C. §

1101(a)(43). After serving his state sentence, Mr. Ulloa-Porras was released into

the custody of the Immigration and Naturalization Service (“INS”) and deported

to Mexico on January 16, 1998. He reentered the United States some ten or

eleven months later and was arrested by the INS in 1999. Mr. Ulloa-Porras pled

guilty to a one-count indictment charging him with illegal entry of a deported

alien into the United States, a violation of 18 U.S.C. § 1326, and was sentenced to

a forty-six month term of imprisonment. He raises four issues on appeal: (1) that

the indictment to which he pled was defective under     Apprendi v. New Jersey , 120

S. Ct. 2348 (2000); (2) that his sentence was imposed in violation of 18 U.S.C. §

3553(a); (3) that the district court erred in refusing to depart downward on the

basis of cultural assimilation; and (4) that the United States Sentencing

Guidelines are unconstitutional.



                                      Discussion

      When Mr. Ulloa-Porras voluntarily entered a guilty plea to the indictment,

he waived all non-jurisdictional defenses, including his defective indictment


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claim . United States v. Browning , 61 F.3d 752, 753 (10th Cir. 1995) (citing

United States v. Davis , 900 F.2d 1524, 1525-26 (10th Cir. 1990));       see also Tollett

v. Henderson , 411 U.S. 258, 267 (1973) (“When a criminal defendant has

solemnly admitted in open court that he is in fact guilty of the offense with which

he is charged, he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty

plea.”). Therefore, we need not address Mr. Ulloa-Porras’ argument that the

indictment was defective for failure to allege his prior aggravated felony

conviction. Cf. United States v. Martinez-Villalva     , 232 F.3d 1329, ---, 2000 WL

1736964, *1 (10th Cir. 2000) (rejecting identical defective indictment claim on

the merits). Second, we reject the defendant’s assertion that his sentence violates

18 U.S.C. § 3553(a). Because Mr. Ulloa-Porras’ “overall sentence is sufficient,

but not greater than necessary, to comply with the . . . goals [listed in § 3553(a)],

the statute is satisfied.”   Koon v. United States , 518 U.S. 81, 108 (1996)

(quotations and citation omitted).

       Mr. Ulloa-Porras also contends that he was entitled to a downward

departure under United States v. Lipman , 133 F.3d 726 (9th Cir. 1998), in which

the Ninth Circuit analogized “cultural assimilation” to “family and community

ties,” a discouraged factor under U.S.S.G. § 5H1.6.      Id. at 730. “Thus, to the

extent that cultural assimilation denotes family and community ties, [     Lipman


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held] that the district court has the authority to depart on this basis in

extraordinary circumstances.”        Id. Our analysis of the sentencing court’s denial

of Mr. Ulloa-Porras’ motion for a downward departure must begin with the

familiar rule that “[a]bsent the trial court’s     clear misunderstanding of its

discretion to depart, . . . we have no jurisdiction to review a refusal to depart.”

United States v. Coddington , 118 F.3d 1439, 1441 (10th Cir. 1997) (citations

omitted, emphasis added). Mr. Ulloa-Porras asserts that the sentencing court did

not understand its authority to grant his motion for a downward departure on the

basis of cultural assimilation.     Aplt. Br. at 11. We disagree.

       The record in this case indicates that the sentencing judge agreed with the

basic holding in Lipman , but that he did not believe he could depart downward               in

Mr. Ulloa-Porras’ case . E.g. , Tr. of Hr’g at 32 (Mar. 8, 2000) (oral ruling by

court) (“I can discern no basis . . . to depart in this instance.”);   id. at 35 (“. . . I

don’t have the authority to depart based on what I know about this case.”).

Despite a few critical remarks with respect to         Lipman , the sentencing court

expressly concurred with the Ninth Circuit’s fundamental premise: that “cultural

assimilation” was comparable to “family and community ties.”            Id. at 31-32

(citing U.S.S.G. § 5H1.6) . While recognizing that such factors are “not ordinarily

relevant” under the Guidelines, the court noted that they might “be relevant if

they’re present to an unusual degree such that the case is distinguishable from the


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heartland of cases.”   Id. at 32. In light of the court’s statement that Mr. Ulloa-

Porras’ “case [was] very similar to many other individuals who have appeared in

front of me,” id. at 33, we are convinced that the court’s refusal to grant Mr.

Ulloa-Porras’ motion for a downward departure was discretionary, and that it is

therefore unreviewable on appeal. Neither the court’s passing criticisms of

Lipman nor its obvious frustrations with the Guidelines are sufficient bases to

conclude that the court believed it could     never consider evidence of “cultural

assimilation” in support of a motion for a downward departure.          Cf. United States

v. Fagan , 162 F.3d 1280, 1282 (10th Cir. 1998) (concluding that a refusal to

depart downward was reviewable where the sentencing court “specifically rul[ed]

that it did not have the discretion to consider remorse as a factor to support the

downward departure”).

       Mr. Ulloa-Porras’ final argument, that the United States Sentencing

Guidelines are unconstitutional under       Apprendi , is also unavailing.   1
                                                                                 In Apprendi ,

the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime      beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” 120 S. Ct. at



       1
        Counsel are advised that the inclusion of lengthy block quotes -- here, two
sets of nearly identical quotes spanning twelve consecutive pages each -- is not
the most effective use of the limited pages permitted for appellate briefing. See
Fed. R. App. P. 32(a)(7).

                                             -5-
2362-63 (emphasis added). The application of the Guidelines within the

permissible statutory range was not before the Court, and the majority in

Apprendi “therefore express[ed] no view on the subject beyond what th[e] Court

ha[d] already held.”   Id. at 2366 n.21 (citing Edwards v. United States , 523 U.S.

511, 515 (1998) (noting difference between challenges to sentence in excess of

the statutory maximum and sentence within statutory range); U.S.S.G. § 5G1.1

(providing that Guidelines sentence may not exceed statutory maximum)).       We see

no Apprendi problem with the application of the Guidelines in this case. Given

Mr. Ulloa-Porras’ prior aggravated felony conviction, the applicable statutory

maximum was twenty years.      See 8 U.S.C. § 1326(b)(2). His actual sentence of

forty-six months was well within the statutory maximum.

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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