                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          SEP 18 2002
                            FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                   No. 01-1598
                                                   (D.C. No. 99-CR-211-N)
    ROBERT LEE BRYANT,                                  (D. Colorado)

                Defendant - Appellant.


                             ORDER AND JUDGMENT          *




Before ANDERSON and BALDOCK , Circuit Judges, and            BRORBY , Senior
Circuit Judge.




         Defendant Robert Lee Bryant pleaded guilty to being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced

him to thirty-five months’ imprisonment, followed by term of supervised

release–a sentence that is near the bottom of the applicable sentencing guideline

range. At sentencing, the court denied Mr. Bryant’s motion for downward



*
      This order and judgment is not binding precedent, except under the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.
departure. On appeal, Mr. Bryant challenges only the court’s refusal to depart

downward from the sentencing guideline range.      1
                                                       But because the district court

understood its authority to depart, we lack jurisdiction to review its discretionary

ruling.

      Mr. Bryant acknowledges that this court has no jurisdiction to review a

district court’s discretionary ruling on a motion for downward departure.       See

United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998). His argument is

that we should exercise jurisdiction to review a district court’s erroneous

interpretation of the guidelines in reaching its discretionary decision–a situation

he claims exists here because the district court erred in concluding that his

particular set of circumstances did not remove his case from the heartland of

typical cases.

              We have jurisdiction to review a sentencing court’s refusal to depart
      from the sentencing guidelines [only] in the very rare circumstance that the
      district court states that it does not have any authority to depart from the
      sentencing guideline range for the entire class of circumstances proffered
      by the defendant. In other words, we possess no jurisdiction when a
      sentencing court concludes under the defendant’s particular circumstances
      that it does not have the authority to depart.




1
      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.

                                           -2-
United States v. Mendez-Zamora     , 296 F.3d 1013, 1018-19 (10th Cir. 2002)

(quotations and citations omitted). After reviewing the sentencing transcript, it is

clear that the district court understood it had authority to depart downward, but it

concluded that because the circumstances of the case were within the heartland of

typical cases, departure was not warranted. Further, this court has held that we

have no jurisdiction to do what Mr. Bryant urges–examine the district court’s

decision on whether this case fell outside the heartland of typical cases so as to

warrant departure.   See Castillo , 140 F.3d at 887 (stating that reviewing “the

merits of whether the defendant’s proffered circumstances are appropriate

grounds for departure” is not prerequisite to decision that court of appeals lacks

jurisdiction and, in fact, is not authorized).

      We have no jurisdiction to review the district court’s denial of the

departure motion. Consequently, we DISMISS the appeal.



                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




                                           -3-
