                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                    March 14, 2007
                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court

 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,

 v.                                                    No. 06-1090
                                                      (D. Colorado)
 FR AN CISC O JA V IER PA STR ANA-             (D.Ct. No. 05-CR-257-REB)
 ESCALA NTE,

       Defendant - Appellant.



                        OR D ER DISM ISSING APPEAL


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      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.

      Francisco Pastrana-Escalante (Pastrana-Escalante), a citizen of M exico,

appeals from a guideline sentence. He claims the district court abused its

discretion by failing to grant a downward departure based on cultural assimilation

and other mitigating factors. As a result, Pastrana-Escalante contends he received

a disproportional sentence compared to similarly situated defendants.
Additionally, Pastrana-Escalante claims his counsel was ineffective for failing to

present all mitigating circumstances and properly arguing for a lower sentence.

Because the district court unambiguously stated it had discretion to grant the

requested downward departure but declined to do so, we lack jurisdiction over

that claim and dismiss it. Furthermore, we decline to address Pastrana-

Escalante’s ineffective assistance of counsel claim.

      I. Background

      On August 5, 2005, Pastrana-Escalante pled guilty to illegal reentry after

deportation subsequent to an aggravated felony conviction (conspiracy to deliver

marijuana) in violation of 8 U.S.C. § 1326(a) and (b)(2). Pastrana-Escalante’s

presentence report (PSR ), prepared using the 2004 edition of the United States

Sentencing Commission’s Guidelines M anual, determined his total offense level

was 21 and his criminal history category was III, resulting in a guideline range of

46-57 months. Prior to sentencing, Pastrana-Escalante filed a M otion for

Downward Departure asking the district court to sentence him below the guideline

range because he waived his right to a deportation proceeding. Attached to his

motion was his Sentencing Statement which asked the district court to sentence

him to 18 months imprisonment based on the sentencing factors set forth in 18

U.S.C. § 3553(a). 1



      1
           The motion and sentencing statement were later amended without substantive
changes.

                                            -2-
      At sentencing, Pastrana-Escalante presented letters from his family and

friends, offered mitigating evidence based on his cultural assimilation within the

United States and testified, along with his sister and father, on his own behalf.

After hearing the government’s objections to Pastrana-Escalante’s motion for

downward departure, the district court concluded Pastrana-Escalante should be

sentenced to a term of imprisonment within the advisory guideline range and

sentenced him to 46 months. In doing so, the district court acknowledged its

jurisdiction to depart downward but declined to do so. Furthermore, the district

court noted it consulted the guidelines for advisory purposes only and considered

the sentencing factors found in 18 U.S.C. § 3553(a)(1)-(7).

      II. Discussion

      Pastrana-Escalante argues the district court was unaware that cultural

assimilation is a mitigating factor a court can take into consideration in deciding

whether to depart downward. He claims the court’s misunderstanding and

resulting failure to grant a downward departure caused him to receive an unfair

sentence outside of the range of sentences for similarly situated defendants.

      W e lack jurisdiction “to review a district court’s discretionary decision to

deny a motion for downward departure on the ground that a defendant’s

circumstances do not warrant the departure.” United States v. Sierra-Castillo,

405 F.3d 932, 936 (10th Cir. 2005). W e review a denial of a downward departure

only if the denial is based on the sentencing court’s interpretation of the

                                         -3-
guidelines as depriving it of the legal authority to grant the departure. United

States v. Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999). “A district court is

presumed to understand that it has discretion to downwardly depart unless the

court unambiguously states that it lacks such discretion.” Sierra-Castillo, 405

F.3d at 936. Here, the district court clearly and unambiguously stated it could

depart downward, but declined to do so. 2 Therefore, we lack jurisdiction to

review the district court’s decision to deny Pastrana-Escalante’s motion for

downward departure. Id.

       W hile we lack jurisdiction to review a district court’s discretionary refusal

to depart downward, we have jurisdiction to review any sentence for

reasonableness. United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir.

2006). H ow ever, Pastrana-Escalante’s brief did not raise this issue on appeal. H e

challenges only the denial of a downward departure rather than challenging the

reasonableness of his sentence. United States v. Fonseca, 473 F.3d 1109, 1112

n.3 (10th Cir. 2007).

       W e decline to consider Pastrana-Escalante’s ineffective assistance of

counsel claims. Pastrana-Escalante may pursue an ineffective assistance of

counsel claim in a collateral proceeding under 28 U.S.C. § 2255. See United

States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (“[Ineffective



       2
         The district court stated: “I acknowledge for the record that I have jurisdiction
to depart downward. I decline to exercise that jurisdiction.” (R. Appellant App. at 33).

                                            -4-
assistance] claims brought on direct appeal are presumptively dismissible, and

virtually all w ill be dismissed.”).

       W e DISM ISS Pastrana-Escalante’s appeal.

                                       Entered by the C ourt:

                                       Terrence L. O ’Brien
                                       United States Circuit Judge




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