                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          SEP 13 2000

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 00-1001
 v.                                               (D.C. No. 99-CR-268-B)
                                                        (Colorado)
 LUIS SAUL PABA,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.



      Luis Saul Paba pled guilty to one count of bank robbery in violation of 18

U.S.C. § 2114, and one count of brandishing a firearm during a crime of violence

in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court denied his motion


      *
       After examining appellant’s brief 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
for a downward departure and imposed a thirty-three month sentence on the

robbery count and a mandatory seven year consecutive sentence on the firearms

count. Mr. Paba appeals. His appellate counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and has moved for leave to withdraw

as counsel. We grant leave to withdraw and dismiss the appeal.

      Anders holds that if counsel finds a case to be wholly frivolous after

conscientious examination, she may so advise the court and request permission to

withdraw. Counsel must also submit to both the court and her client a brief

referring to anything in the record arguably supportive of the appeal. The client

may then raise any point he chooses, and the court thereafter undertakes a

complete examination of all proceedings and decides whether the appeal is in fact

frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss

the appeal. See id. at 744.

      The stipulated facts submitted with the plea agreement to the district court

in this case reveal that Mr. Paba and three codefendants planned the robbery of a

credit union at which one of the codefendants had been employed. During the

week before the robbery, credit union employees observed Mr. Paba and another

codefendant sitting in a car outside the facility and observing the activities there.

In accordance with their plan, Mr. Paba entered the facility with a loaded gun

supplied to him by another codefendant. That codenfendant acted as a look-out


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and the other two codefendants acted as getaway drivers. Once inside the credit

union, Mr. Paba pointed the gun at two tellers, gave them a demand note and

ordered them into the vault. When a third employee arrived she too was ordered

into the vault. Mr. Paba then retrieved all of the money from the teller windows

and left the facility. The four were apprehended shortly thereafter.

      Mr. Paba moved the court at sentencing for a downward departure on the

ground that his criminal conduct was aberrant behavior. The district court

addressed the matter at length and denied the motion. Mr. Paba’s counsel also

suggested that departure was warranted to avoid a sentencing disparity between

Mr. Paba and his codefendants, and because Mr. Paba would be unable to

participate in various prison programs as a result of his convictions. The court

did not specifically address these arguments in its ruling.

      In her Anders brief, counsel raises the district court’s failure to grant Mr.

Paba’s motion to depart. Pursuant to Anders, Mr. Paba was provided a copy of

counsel’s brief and notified of his right to file a brief pro se. Mr. Paba has

responded by arguing that the district court should have applied the five-level

firearm enhancement to his robbery sentence provided by U.S.S.G. §

2B3.1(b)(2)(C) rather than imposing a seven year mandatory sentence under

section 924(c).




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      We turn first to the district court’s denial of Mr. Paba’s request for a

downward departure on the ground of aberrant behavior, and conclude that we

lack jurisdiction over this claim. “It is well settled that an appellate court lacks

jurisdiction to review a sentencing court’s refusal to depart from the Sentencing

Guidelines when the sentencing court was aware that it had the authority to depart

but declined to exercise that authority and grant the departure.” United States v.

Fagin, 162 F.3d 1280, 1282 (10th Cir. 1998). Here the district court expressly

acknowledged its authority to depart but concluded that departure was not

warranted under the circumstances. Accordingly, we are without jurisdiction.

      Mr. Paba’s counsel also argued to the sentencing court that departure was

warranted based on the disparity between Mr. Paba’s sentence and those of his

codefendants, and because many prison programs would not be available to him

as a result of his convictions. Although the court did not expressly address these

grounds in denying departure, we nonetheless are without jurisdiction to address

them. As stated above, the court expressly recognized its authority to depart in

considering Mr. Paba’s argument that his behavior was aberrant, and the other

grounds for departure were raised in the same argument. We have held that a

judge’s failure to expressly mention his authority to depart does not support the

inference that he did not understand his discretion to do so. See United States v.

Rowen, 73 F.3d 1061, 1063 (10th Cir. 1996). That holding is particularly


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applicable in the instant circumstances. Accordingly, we lack jurisdiction over

these claims as well.

      Mr. Paba argues pro se that the sentencing court should have enhanced his

robbery conviction rather than imposing an additional sentence for his section

924(c) conviction. Construing his argument liberally, he appears to allege that

the separate section 924(c) charge amounted to impermissible sentence

manipulation. This argument is frivolous. Mr. Paba’s admitted conduct fits

squarely within the ambit of section 924(c)(1)(A)(ii) and the prosecutor was

therefore well within his broad prosecutorial discretion in charging Mr. Paba with

violating that provision. In view of Mr. Paba’s guilty plea and conviction, the

sentencing court was required to impose a mandatory seven year consecutive

sentence rather than enhance his robbery conviction on the basis of his use of a

firearm. See U.S.S.G. § 2K2.4, comment. (n.2).

      After careful review of the entire proceedings, we conclude that the record

establishes no ground for appeal. We GRANT counsel’s request to withdraw and

we DISMISS the appeal.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




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