                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              NOV 2 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 04-2084
                                                            (D. N.M.)
 RICARDO MEXICANO-AGUILAR,                         (D.Ct. No. CR-03-2547 RB)
 also known as Benjamin Alberto
 Barragan-Aguilar,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
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. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      *
          This order and judgment is not binding precedent except under the doctrines of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.
        Appellant Ricardo Mexicano-Aguilar, a federal prisoner represented by

 counsel, pled guilty to one count of reentry of a deported alien previously

 convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1) and (2)

 and (b)(2). The district court sentenced Mr. Mexicano-Aguilar to fifty-seven

 months imprisonment followed by two years unsupervised release. Mr.

 Mexicano-Aguilar challenges his sentence, claiming the district court erred by not

 sua sponte imposing a downward departure based on his economic and family-

 related situation. We dismiss Mr. Mexicano-Aguilar’s appeal.



      After Mr. Mexicano-Aguilar pled guilty, the district court held a sentencing

hearing during which Mr. Mexicano-Aguilar’s counsel explained the circumstances

causing Mr. Mexicano-Aguilar’s reentry into this country. These included his

inability to earn a living in Mexico and the illness of his mother-in-law, which

caused his wife to remain home to care for her rather than work to earn income.

After outlining these circumstances, Mr. Mexicano-Aguilar’s counsel stated “I just

state that, not as grounds for a downward departure, because I believe it’s in the

heartland of cases,” but for the purpose of sentencing Mr. Mexicano-Aguilar to the

“low end” of the guideline sentencing range at fifty-seven months. While the

district court accepted as true Mr. Mexicano-Aguilar’s contentions he illegally

reentered the country “simply to work to try to support his family,” and noted it


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was an “obviously very commendable motivation[],” it went on to state that “the

fact remains, as the Guidelines are applied to this situation, it is a long time in jail,

and I’m sorry that that’s so.” The court also recognized that Mr. Mexicano-

Aguilar’s criminal activity occurred several years ago, and sentenced Mr.

Mexicano-Aguilar at the low end of the guideline range to fifty-seven months

imprisonment.



      On appeal, Mr. Mexicano-Aguilar contends the district court should have sua

sponte recognized his unfortunate family circumstances as a basis for applying a

downward departure. In support, he relies on Second Circuit cases which recognize

the application of downward departures for defendants supporting minor

dependents who are ill. See United States v. Ekhator, 17 F.3d 53 (2d Cir. 1994);

United States v. Johnson, 964 F.2d 124 (2d Cir. 1992). Mr. Mexicano-Aguilar also

seems to infer the district court did not know of its authority to grant a downward

departure, because it felt “constrained” to, or had “no choice” but to, sentence him

within the Sentencing Guidelines.



      In response, the government contends this court lacks jurisdiction to review

the district’s court failure to sua sponte impose a downward departure.

Alternatively, it suggests Mr. Mexicano-Aguilar is not entitled to a downward


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departure because the circumstances described are insufficient to remove him from

the “heartland” of similar cases.



      In this case, it is clear Mr. Mexicano-Aguilar did not request a downward

departure during the sentencing process, and therefore, the district court did not

decide the issue of whether a downward departure was warranted. By raising on

appeal the issue the district court should have sua sponte applied a downward

departure, Mr. Mexicano-Aguilar is arguably attempting to avoid the well-

established principle that this court will generally not review a district court’s

discretionary decision to deny a request for downward departure, except if it

believed it lacked such authority. See United States v. Fortier, 180 F.3d 1217,

1231 (10th Cir. 1999). However, we have treated “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. at 1231 (citations

omitted). “[U]nless the judge’s language unambiguously states the judge does not

believe he has authority to downward depart, we will not review his decision.” Id.

(quotation marks and citation omitted).



      In this case, the statements made by the judge do not unambiguously state he

lacked authority to apply a downward departure. Not only does Mr. Mexicano-


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Aguilar fail to establish the judge believed he lacked this authority, but he fails to

make a showing, pursuant to 18 U.S.C. § 3742, that his sentence is in violation of

law, a result of an incorrect application of the Guidelines, or otherwise premised on

facial illegality, improper calculations, or clearly erroneous fact findings. See

United States v. Garcia, 919 F.2d 1478, 1479-1481 (10th Cir. 1990). Accordingly,

for these reasons, we decline to review the district court’s failure to sua sponte

depart downward.



      Even if we considered Mr. Mexicano-Aguilar’s argument, the outcome would

be the same. This is because a defendant is entitled to a downward departure from

the guideline range only if circumstances are sufficient to remove him from the

“heartland “ of those defendants charged with the same offense, which in this case

is unlawful entry after deportation. See United States v. Marquez-Gallegos, 217

F.3d 1267, 1270-71 (10th Cir.) (relying on U.S.S.G. §5K2.0), cert. denied, 531 U.S.

905 (2000). Under the United States Sentencing Guidelines “[f]amily ties and

responsibilities are not ordinarily relevant in determining whether a departure may

be warranted.” See U.S.S.G. §5H1.6. As a result, family responsibilities are a

discouraged factor which the district court may consider only in the most

extraordinary cases for the purpose of departing downward. See United States v.

McClatchey, 316 F.3d 1122, 1130 (10th Cir. 2003). As to the Second Circuit cases


                                           -5-
cited by Mr. Mexicano-Aguilar, we find them distinguishable on the facts and are

not bound by them. Thus, based on the applicable legal principles, and Mr.

Mexicano-Aguilar’s failure to show his family and financial circumstances are

extraordinary or otherwise outside the heartland, we cannot say the district court

erred in not sua sponte granting him a downward departure.



      Accordingly, we dismiss Mr. Mexicano-Aguilar’s appeal.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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