                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 14 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-1523
                                                    (D.C. No. 00-CR-261-S)
    DAVID WARREN VEREN,                                    (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, PORFILIO , and ANDERSON , Circuit Judges.



         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.

         David Warren Veren entered a guilty plea to aiding and abetting bank

fraud, in violation of 18 U.S.C. §§ 2, 1344; and unauthorized use of access



*
      This order and judgment is not binding precedent, except under the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.
devices, in violation of 18 U.S.C. § 1029. In a docketing statement prepared

by counsel, Veren challenged his sentence, asserting that the district court erred

in refusing to depart from the Sentencing Guidelines on the ground that he had

committed the offenses while suffering from significantly reduced mental

capacity. See USSG § 5K2.13. This court issued a show cause order requiring

the parties to brief the question of whether there was appellate jurisdiction to

consider the appeal.

       In response, counsel filed a motion for leave to withdraw and a brief,

pursuant to Tenth Circuit Rule 46.4(B)(1) and       Anders v. California , 386 U.S. 738

(1967), stating that the court lacked jurisdiction. Veren then sent a    pro se letter

to the court, claiming that he also wished to appeal the issue of whether

his criminal history points were calculated incorrectly. This court reserved

judgment on the jurisdictional issue raised in the show cause order.

       Concerning the downward departure issue, “[w]e have jurisdiction to

review a district court’s refusal to depart downward only when ‘the district court

refused to depart because it erroneously interpreted the [Sentencing] 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)). In the instant

case, the district court was fully aware of its discretion to depart based on Veren’s


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contention that he committed the offenses while suffering from a significantly

reduced mental capacity. It is plain from the record that the court simply

disbelieved Veren’s claim of diminished capacity. Accordingly, this court has no

jurisdiction to consider the district court’s refusal to depart downwards from the

Guidelines.

       We next turn to Veren’s claim of error in the computation of his criminal

history points. Since an erroneous determination of the proper criminal history

category involves an incorrect application of the Guidelines, this court has

jurisdiction over the issue.   See 18 U.S.C. § 3742(a)(1) & (2) (providing that

a defendant may appeal a sentence which “was imposed in violation of the law,”

or “as a result of an incorrect application of the sentencing guidelines”).

       Veren did not object to the district court’s calculation of his criminal

history. Therefore we review this claim for plain error.   United States v. Tisdale ,

248 F.3d 964, 981 (10th Cir. 2001).

              To establish plain error [defendant] must show: (1) an error,
       (2) that is plain, which means clear or obvious under current law, and
       (3) that affects substantial rights. If these three elements are
       satisfied, then we may exercise discretion to correct the error if it
       seriously affects the fairness, integrity, or public reputation of
       judicial proceedings.

Id. (quotation and brackets omitted).

       Here, Veren provides only a summary statement that he “felt” that his

criminal history or category “was incorrectly calculated, and did not reflect

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[his] true history.” Veren’s Letter of Mar. 14, 2001. In the absence of

a factual or legal basis for this claim, we cannot find any error whatsoever.

Veren falls far short of the necessary showing for plain error.

      We AFFIRM Veren’s sentence. Counsel’s motion to withdraw

is GRANTED.


                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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