                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          OCT 26 1999
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 98-6071
 v.
                                                  (D.C. No. CR-97-83-A)
                                               (Western District of Oklahoma)
 JUAN OLIVAS CRUZ,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before SEYMOUR, and LUCERO, Circuit Judges, and KIMBALL, District
Judge. **



      On September 17, 1997, Juan Olivas Cruz pleaded guilty in federal district

court to a violation of 21 U.S.C. § 841(a)(1) for possessing with intent to

distribute one ounce of cocaine powder and a violation of 18 U.S.C. §§ 2 and

1956(a) for causing a $2000 wire transfer of proceeds from unlawful activity.

The district court sentenced Cruz to serve 262 months on the first count and 240


      *
        This order and judgment is not binding precedent, except under the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.
      **
         The Honorable Dale A. Kimball, United States District Court for the
district of Utah, sitting by designation.
months on the second count, to run concurrently, and to pay a $20,000 fine. On

appeal, Cruz argues the district court erroneously believed it lacked authority to

depart downward sua sponte from the Sentencing Guidelines for the “substantial

assistance” Cruz rendered to the prosecution. We exercise jurisdiction pursuant

to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm the sentence issued by

the district court.

       Juan Olivas Cruz led a drug ring based in Enid, Oklahoma. After his arrest,

Cruz agreed to cooperate with the FBI and United States Attorney’s office,

providing them information on his fellow dealers at several meetings. When Cruz

was ready for sentencing, however, the U.S. Attorney’s office did not make a

motion for a downward departure based on Cruz’s “substantial cooperation”

against his fellow dealers, pursuant to U.S.S.G. § 5K1.1. Instead, the U.S.

Attorney’s office furnished the court with a “cooperation memo” which stated that

Cruz had provided some information that conflicted with information provided by

other witnesses.

       At the sentencing hearing, Cruz requested that the district court depart from

the Guideline range based on his “substantial cooperation.” The district judge

commented on the government’s “cooperation memo” and the conflicting

information Cruz had provided, posing questions to both the government and

Cruz’s attorney. The district judge concluded by stating, “[w]ell, nothing is
presented here that would move me to depart from the guideline range.” The

court imposed a sentence within the range mandated by the Guidelines.

      We “cannot exercise jurisdiction to review a sentencing court’s refusal to

depart from the Guidelines, either upward or downward, unless the court refused

to depart because it interpreted the Guidelines to deprive it of the authority to do

so.” United States v. Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999) (citations

omitted). “Equally clear in our circuit . . . is that we treat ambiguous statements

made by district judges as though the judge was aware of his or her legal

authority to depart but chose instead, in an exercise of discretion, not to depart.”

Id.

      In the present case, there is simply no evidence to support Cruz’s claim that

the district court believed it lacked authority to depart downward from the

Guidelines. The judge merely stated that “nothing is presented here that would

move me to depart from the guideline range.” Even if that statement contains

ambiguity (which in our view it does not), we are still precluded from reviewing

the court’s decision not to depart from the Guideline range. See id.

      Because we are unable to review refusals of the district court to depart

from the Guideline range, we AFFIRM the district court’s sentence and DISMISS

this case.

                                       ENTERED FOR THE COURT

                                       Carlos F. Lucero
                                       Circuit Judge
