                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           OCT 26 2000
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.
                                                         No. 00-4043
                                                   (D.C. No. 99-CR-564-W)
 JESUS LUGUIN-RODRIGUEZ, aka
                                                          (D. Utah)
 Benjamin Alamillo-Ceron,

       Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges. **


      Defendant-Appellant Jesus Luguin-Rodriguez (“Luguin-Rodriguez”)

appeals his sentence for illegal re-entry of a previously deported alien, in

violation of 8 U.S.C. § 1326. Luguin-Rodriguez pled guilty to this charge on

November 15, 1999, two weeks before the United States Attorney’s Office


      * This order and judgment is not binding precedent, except under the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)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
handling his case offered, for a period of a few weeks in December 1999, to

recommend a downward departure of two offense levels for several defendants

who agreed to plead guilty under 8 U.S.C. § 1326, waive the pre-sentence report

and agree to immediate sentencing. The government did not make this offer to

Luguin-Rodriguez, so Luguin-Rodriguez requested that the district court grant

him the downward departure absent a motion by the government. The district

court declined to grant the downward departure but sentenced Luguin-Rodriguez

at the low end of the applicable guideline range. 1

      Luguin-Rodriguez now argues that the district court erred in not granting

him the downward departure that was offered to other similarly situated

defendants but that was not offered to Luguin-Rodriguez prior to his entering a

guilty plea.

      At his sentencing hearing, on February 18, 2000, Luguin-Rodriguez argued

that he was entitled, as a matter of due process and equal protection, to the same

downward departure that the prosecution had offered to similarly situated

defendants. The district court rejected Luguin-Rodriguez’s due process and equal

protection arguments and denied Luguin-Rodriguez’s request for a downward



      1
          Based upon the pre-sentence report, Luguin-Rodriguez was subject to a
Sentencing Guidelines range of 70 to 87 months. See Appellee’s Brief at 3. The
district court sentenced him to 70 months, the lowest available sentence within the
applicable guideline range.

                                         -2-
departure under § 5K2.0. 2 (See Sent. Hr’g Tr. at 4, lines 22-25.) The court stated

only that it had read Luguin-Rodriguez’s motion papers and that “in [its] opinion

the guidelines should be followed.” (See Sent. Hr’g Tr. at 4, lines 23-25.) The

court also referred to its discussion earlier that day in the sentencing hearing of

another defendant, Luna-Sanchez, who had raised the same argument. (See Sent.

Hr’g Tr. at 5, lines 5-13.) The district court stated that the court’s findings in that

case should be incorporated in Luguin-Rodriguez’s case for purposes of appeal. 3

(See Sent. Hr’g Tr. at 5, lines 5-13.)

      It is well-settled in this circuit that the court of appeals lacks jurisdiction to

review a sentencing court’s discretionary refusal to depart from the Sentencing

Guideline’s sentencing range in a given case unless the refusal to depart was


      2
          Section 5K2.0 of the Sentencing Guidelines states:

            Under 18 U.S.C. §3553(b), the sentencing court may impose a
      sentence outside the range established by the applicable guidelines, if
      the court finds “that there exists an aggravating or mitigating
      circumstance of a kind, or to a degree, not adequately taken into
      consideration by the Sentencing Commission in formulating the
      Guidelines that should result in a sentence different from that
      described.” . . . The decision as to whether and to what extent departure
      is warranted rests with the sentencing court on a case specific basis.

See U.S. Sentencing Guidelines Manual §5K2.0 (Policy Statement) (1999).
      3
       The case of United States v. Luna-Sanchez, Case No. 1088-2:99-CR-561-
W, was also appealed to this court. See United States v. Luna-Sanchez, Case No.
00-4042. Our decision in Luna-Sanchez is also issued today and reaches the same
conclusion as the case at bar.

                                         -3-
based upon an impermissible factor such as race or gender, or the district court

incorrectly believed it did not have authority to depart under the Sentencing

Guidelines. See United States v. Guidry, 199 F.3d 1150, 1161 (10th Cir. 1999);

see also United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998) (“[The

court] of appeals cannot exercise jurisdiction to review a sentencing court’s

refusal to depart from the sentencing guidelines except in the very rare

circumstance that the district court states that it does not have the authority to

depart from the sentencing guidelines range for the entire class of circumstances

proffered by the defendant.”); United States v. Rowen, 73 F.3d 1061, 1063 (10th

Cir. 1996) (“We 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 Guidelines as depriving it of the power to depart based on the

proffered circumstances . . . ’”) (quoting United States v. Barrera-Barron, 996

F.2d 244, 245 (10th Cir. 1993)). We will not find that the district court was

unaware of its discretion to depart downward from the Guidelines unless the

judge’s language “unambiguously states that the judge does not believe he has

authority to downward depart.” United States v. Rodriguez, 30 F.3d 1318, 1319

(10th Cir. 1994); see also id. (“[W]e 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.”). When the court is


                                          -4-
silent as to its discretionary authority, we assume that the district court knew that

it possessed discretion to depart but declined to do so. See Rowen, 73 F.3d at

1063 (“We do not assume that silence indicates ignorance”).

      Here, a review of the record does not reveal any unambiguous statement by

the district court that it lacked discretion to downward depart from the Sentencing

Guidelines. The district court reviewed the submissions of both parties and

determined that the Sentencing Guidelines should be followed. Under these

circumstances, this court simply cannot conclude that the district court

erroneously believed that it lacked discretionary authority to depart from the

Guidelines in this case. Accord Rowen, 73 F.3d at 1063. We must, therefore,

conclude that we lack jurisdiction to review the district court’s decision. See

Rodriguez, 30 F.3d at 1319 (“Absent such a misunderstanding on the sentencing

judge’s part, illegality or an incorrect application of the guidelines, we will not

review the denial of a downward departure.”) (citing United States v. Garcia, 919

F.2d 1478, 1481 (10th Cir. 1990)).

      For the foregoing reasons, we DISMISS Luguin-Rodriguez’s appeal of the

district court’s sentencing decision.

                                        ENTERED FOR THE COURT

                                        David M. Ebel
                                        Circuit Judge



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