                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          DEC 14 2004
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.
                                                         No. 04-2057
 ANDRES LUQUE-CANO, aka Noel
                                                  (D.C. No. CR-03-1849-JC)
 Ramos Figueroa, aka Martin Pacheco
                                                         (Dist. N.M.)
 Casares, aka Juan Jose Almonte-
 Munante,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      Andres Luque-Cano (“Defendant”) 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), (2), and § 1326(b)(2). The district court sentenced

Defendant to 77 months imprisonment followed by two years of supervised


      *
         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) and 10th Cir. R. 34.1(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judgment is not binding precedent, except under the doctrines of law of the case,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. 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.
release. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a) and AFFIRM. 1



                                 BACKGROUND

      In December of 2003, Defendant pled guilty, without the benefit of a plea

bargain, to having illegally reentered the United States after being deported

following conviction for an aggravated felony.

      At sentencing, the district court accepted the guideline calculation in the

presentence report (“PSR”), which placed Defendant at an offense level 21 and a

criminal history category VI, with a guideline range of 77 to 96 months

imprisonment. Defendant did not object to the PSR calculation, but did request a

downward departure. The district court denied the motion for a departure and

sentenced Defendant to 77 months, the shortest period of incarceration permitted

under the applicable guideline range.




      1
       Defense counsel has filed a motion to withdraw under Anders v.
California, 386 U.S. 738 (1967). Although the holding in Anders entitles the
Defendant to raise additional points in response to counsel’s Anders brief and
such opportunity was noted in this case, Luque-Cano has made no such filing.
Because we find that the record reveals no non-frivolous issues on appeal, we
grant counsel’s motion to withdraw.

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                                  DISCUSSION

      1.     Application of sentencing guidelines

      We review the district court’s application of the Sentencing Guidelines de

novo and its findings of fact for clear error. United States v. Bruce, 78 F.3d

1506, 1509 (10th Cir. 1996). Because no objection was made to the sentencing

calculation in this case, we review only for plain error. United States v. Tisdale,

248 F.3d 964, 981 (10th Cir. 2001).

      In this case, the district court properly applied the Sentencing Guidelines.

The offense level was calculated with a base offense level of 8 for the illegal

reentry charge pursuant to U.S.S.G. § 2L1.2(a), and that offense level was then

enhanced by 16 levels because the reentry occurred after deportation following a

drug trafficking offense for which the sentence imposed exceeded 13 months

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). Defendant then received a three-level

acceptance of responsibility adjustment pursuant to U.S.S.G. § 3E1.1, bringing his

total offense level to 21.

      Defendant’s criminal history is extensive. Criminal history points were

properly assessed for a prior felony menacing conviction, multiple driving while

ability impaired and driving while under the influence convictions, and multiple

controlled substance offenses. He also received an additional two points because




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the instant offense occurred within two years of his release from prison. This

resulted in a criminal history category VI.

      Defendant was sentenced within the applicable guideline for a combined

offense level of 21 and a criminal history category VI. We find no error in this

calculation of the guideline range, nor do we find it a violation of the cruel and

unusual clause of the Eighth Amendment. See United States v. Hughes, 901 F.2d

830, 831-32 (10th Cir. 1990); United States v. Youngpeter, 986 F.2d 349, 355-56

(10th Cir. 1993).

      2.     Refusal of request for downward departure

      This court lacks jurisdiction to review the district court’s discretionary

decision to deny a request for downward departure “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.)

      Before the district court, Defendant moved for a downward departure from

a criminal history category VI to category V because “category V more

appropriately represents the seriousness of his criminal history” which “although

extensive is more reflective of a person with a substance abuse problem then a

person bent on criminal activity.” 2 Defendant also asserted that the last time he


      2
       The guideline governing departures from criminal history categories,
U.S.S.G. § 4A1.3, provides in relevant part, “If reliable information indicates that
the defendant’s criminal history category substantially over-represents the

                                        -4-
was in prison he completed an education program, an anger management program,

and a drug dependency and addiction treatment program, and now poses a low

risk of reverting to criminal conduct. 3

      Initially, at sentencing, the district court indicated, “I want to sentence him

at a higher level than the low end, based on his criminal history.” However, after

considering Defendant’s departure argument, the district court agreed to “cut him

some slack on the guideline range” and “sentence him at the low end of the

guidelines.” However, the court denied the motion to depart below that range:

“But your motion for reduction, no, that will be denied. I believe he is strictly

category VI.”

      The district court readily recognized its discretionary power to grant a

downward departure but concluded such a departure was not warranted in this

case. Accordingly, we have no jurisdiction to review this issue.




seriousness of defendant’s criminal history or likelihood that the defendant will
commit other crimes, a downward departure may be warranted.”
      3
       In the alternative, Defendant asked for a four-level downward departure
based on a combination of these factors pursuant to U.S.S.G. § 5K2.0.

                                           -5-
                                 CONCLUSION

      For the foregoing reasons, we DISMISS that portion of the appeal that

might be construed to challenge the district court’s refusal to depart downward

and AFFIRM the conviction and sentence in this case.



                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




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