                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAR 23 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 99-6330
 v.
                                                  (D.C. No. 99-CR-31-M)
                                               (Western District of Oklahoma)
 DOMINGO MARTINEZ-DELEON,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      Domingo Martinez-DeLeon, an inmate at the Federal Correction Institution

at El Reno, Oklahoma, appearing pro se, appeals the sentence he received

following his guilty plea to knowingly possessing a prohibited object (cocaine) as

an inmate, in violation of 18 U.S.C. § 1791(a)(2), and challenges the grand jury

indictment. Martinez-DeLeon’s attorney believes that his appeal is wholly

frivolous. He therefore has filed both a motion to withdraw as attorney of record


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
and a corresponding Anders brief outlining Martinez-DeLeon’s apparent grounds

for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Anders requires

that such a brief refer to “anything in the record that might arguably support the

appeal.” Id. Consistent with this requirement, counsel informs us appellant

wishes to allege the district court abused its discretion in failing to depart

downward to the extent warranted by the mitigating factor present in this case.

Counsel furnished Martinez-DeLeon with a copy of the brief, and Martinez-

DeLeon responded, see id., raising one additional claim for relief and requesting

the appointment of counsel. Based on our own independent review of the record,

we conclude Martinez-DeLeon’s claims are wholly without merit. Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we grant counsel’s

motion to withdraw, deny Martinez-DeLeon’s request for the appointment of

counsel, and affirm his conviction and sentence.

      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). “We also lack jurisdiction where the defendant complains that the

district court’s grant of a downward departure is too small.” See United States v.

Bromberg, 933 F.2d 895, 896 (10th Cir. 1991); see also 18 U.S.C. § 3742. That is


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the case here: The district court exercised its discretion to depart, but declined to

depart to the extent requested by Martinez-DeLeon. 1 Because we lack jurisdiction

to review that decision, this claim is wholly frivolous.

      In Martinez-DeLeon’s response to counsel’s Anders brief, he raises one

additional issue. He challenges his indictment, alleging that Susan J. Micio, a

special agent with the FBI, misled the grand jury in order to obtain an indictment

and that she was unfamiliar with his case. In support of these assertions,

Martinez-DeLeon points to alleged inconsistencies between the prison incident

report and Micio’s testimony. After thorough review of both the incident report

and Micio’s testimony, we find no such inconsistencies. Micio testified that

eighteen balloons containing cocaine and heroin were recovered from Martinez-

DeLeon between January 4 and 5, 1997, at which time Martinez-DeLeon asked

what was going to happen to him because they contained cocaine. Based on

Martinez-DeLeon’s statement, the incident report reveals that prior to testing the

substances contained in the balloons, the alleged drug in the balloons was

cocaine. That same report states that after testing, the balloons contained both

cocaine and heroin. Thus, Martinez-DeLeon’s allegation that “nowhere” in the

report is heroin mentioned is incorrect. (Appellant’s 12/28/99 Letter at 1.) In


      1
        The district court reached this result by reducing by two levels Martinez-
DeLeon’s total offense level, which reduced his imprisonment range from 24–30
months to 18–24 months.

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addition, Martinez-DeLeon has failed to support his conclusory allegations that

Micio was unfamiliar with his case and misled the grand jury as to the facts

underlying the indictment. “[C]onclusory allegations without supporting factual

averments are insufficient to state a claim on which relief can be based.” Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Because we conclude that both

of Martinez-DeLeon’s claims lack merit, we also deny his request for the

appointment of counsel.

      We AFFIRM the conviction and sentence imposed by the district court,

GRANT counsel’s request to withdraw, and DENY Martinez-DeLeon’s request

for the appointment of counsel.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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