                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAY 11 1998
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                    No. 97-2217
                                                 (D.C. No. 96-CR-524-SC)
 EZEQUIEL REYES-GUTIERREZ,                              (D.N.M.)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges. **


      Mr. Reyes-Gutierrez appeals from his sentence based upon his guilty plea

to one count of possession with intent to distribute 100 or more grams of

methamphetamine. See 21 U.SC. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2.

The district court sentenced him to 87 months of imprisonment followed by four

years of supervised release. Mr. Reyes-Gutierrez asserts that the district court


      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
erred in refusing to depart downward from the Guidelines because it mistakenly

believed it lacked authority to depart downward, mechanically rejected outrageous

conduct and family circumstances as grounds for departure, and violated 18

U.S.C. § 3553(a).

      Our review of the record indicates the district court clearly understood it

had discretion to depart downward but chose not to. As the government notes, the

district court allowed and considered Mr. Reyes-Gutierrez’s proffer and argument

before deciding not to grant the request for a downward departure. See III R. at

3-15. We thus have no jurisdiction to review the district court’s refusal to do so.

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

nothing in the record indicates that the district court’s rejection of outrageous

conduct and family circumstances was mechanical. See United States v. Mobile

Materials, Inc., 871 F.2d 902, 918-19 (10th Cir.), supplemented on reh’g, 881

F.2d 886 (10th Cir. 1989). Finally, even had Mr. Reyes-Gutierrez raised his §

3553(a) argument before the district court, his argument is without merit. See

United States v. Soto, 918 F.2d 882, 884 (10th Cir. 1990).

      The appeal is DISMISSED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge


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