                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          FEB 7 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 02-6131
v.
                                                   D.C. No. CR-01-105-L
                                                     (W.D. Oklahoma)
JUAN ANTONIO ARRIETA-DURAN,
also known as Sergio Lopez,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this court 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(G). The case is

therefore ordered submitted without oral argument.

      Appellant, Juan Antonio Arrieta-Duran is a non-citizen who was deported

in 2000 after his felony conviction for attempted robbery. On November 29,



      *
       This order and judgment is not binding precedent, except under the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.
2001, Duran pleaded guilty to one count of illegally re-entering the United States

in violation of 8 U.S.C. § 1326(a). A presentence investigation report was

prepared and, prior to sentencing, Duran filed a motion requesting a downward

departure from the sentencing guidelines range. The district court denied the

motion and sentenced Duran to the low end of the guidelines range. Duran then

brought this appeal.

      The only issue raised by Duran on appeal is whether the district court erred

by failing to grant him a downward departure. “It is well settled that an appellate

court lacks jurisdiction to review a sentencing court’s refusal to depart from the

Sentencing Guidelines when the sentencing court was aware that it had the

authority to depart but declined to exercise that authority and grant the

departure.” United States v. Fagan , 162 F.3d 1280, 1282 (10th Cir. 1998).

Duran, however, argues that the district court refused to grant the downward

departure because it believed it had no discretion to depart on the grounds he

advanced. Under those circumstances, this court does have jurisdiction to review

the district court’s legal conclusion “that it does not have any authority to depart

from the sentencing guideline range for the entire class of circumstances

proffered by the defendant.”   United States v. Castillo , 140 F.3d 874, 887 (10th

Cir. 1998). However, the “district court’s statement that it lacks authority to




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grant the requested downward departure must be unambiguous.”         United States v.

Browning , 252 F.3d 1153, 1161 (10th Cir. 2001).

      We reject Duran’s argument. At the sentencing hearing, the district court

did not make an unambiguous legal determination that it lacked discretion to

grant the downward departure requested by Duran. To the contrary, the court

considered Duran’s arguments but concluded that the factors upon which the

motion for downward departure was based “were factors obviously taken into

consideration by the Sentencing Commission when they determined the

guidelines.” The court further stated, “the Court denies the request for

downward departure, as I feel it does not fall out of the heartland of cases.” It is

clear that the district court’s refusal to grant Duran a downward departure was

based on its belief that it had the discretionary authority to grant the departure

but that the circumstances asserted by Duran did not justify the departure.

Accordingly, this court lacks jurisdiction to review the district court’s denial of

Duran’s departure motion and this appeal is     dismissed .

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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