                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           NOV 6 2002
                    UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                               Clerk
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                         No. 02-1165
   v.                                               D.C. No. 01-CR-433-D
                                                        (D. Colorado)
 CRUZ AGUIRRE-CORDERO,

             Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before EBEL, LUCERO and HARTZ, Circuit Judges.


        Cruz Aguirre-Cordero, an alien, previously pled guilty to possession of less

than fifty kilograms of marijuana with intent to distribute and was sentenced to

ten months’ imprisonment and two years’ supervised release. On July 5, 2000,

Aguirre-Cordero was deported. On March 28, 2001, authorities found him in the

United States when he was arrested in Colorado for a traffic violation. Aguirre-


        *
         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judgment is not binding precedent, except under the doctrines of law of the case,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.
Cordero was indicted on April 25, 2001, for illegally reentering the United States

after having been convicted of an aggravated felony, in violation of 8 U.S.C. §

1326(a) and (b)(2). He later pled guilty to this offense and was sentenced to

thirty-seven months’ imprisonment. Aguirre-Cordero also pled guilty to three

counts of violating the terms and conditions of his supervised release: (1)

unlawful re-entry into the United States after having been convicted of an

aggravated felony and deported; (2) driving while ability impaired; and (3)

reentering the United States without prior approval from the Attorney General, a

special condition of his supervised release. On March 28, 2002, the district court

sentenced Aguirre-Cordero to four months’ imprisonment, to be served

consecutive to the thirty-seven-month prison sentence imposed for the § 1326

illegal re-entry conviction, thirty-two months’ supervised release, and a $100

special assessment. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and

affirm.

      On appeal, the federal public defender appointed to represent Aguirre-

Cordero filed an Anders brief and moved to withdraw as counsel. See Anders v.

California, 386 U.S. 738, 744 (permitting counsel who considers an appeal to be

wholly frivolous to advise the court of that fact, request permission to withdraw

from the case, and submit a brief referring to portions of the record that arguably

support the appeal). In the Anders brief, counsel stated that the district court did


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not err in calculating Aguirre-Cordero’s sentence pursuant to the Sentencing

Guidelines. Aguirre-Cordero was afforded an opportunity to respond on the

merits, but declined to do so, only filing a motion asking us to appoint counsel for

his appeal.

      After conducting “a full examination of all the proceedings” as required by

Anders, id., we conclude that the appeal is without merit. We have carefully

reviewed the district court’s sentencing calculations and find no error. Because

Aguirre-Cordero had a criminal history category of one, and the most serious

violation of his supervised release entailed reentering the United States after

committing an aggravated felony and being deported, a Grade B offense, his

correct sentencing range was from four to ten months. See U.S.S.G. §§ 7B1.1

(defining grades of supervised release violations) and 7B1.4(a) (term of

imprisonment for violations of supervised release). He received a four-month

sentence, the statutory minimum. This four-month sentence for violation of

supervised release was imposed consecutively to the thirty-seven-month sentence

imposed for his illegal reentry conviction. Section 7B1.3(f) of the Sentencing

Guidleines states:

      [A]ny term of imprisonment imposed upon the revocation of
      probation or supervised release shall be ordered to be served
      consecutively to any sentence of imprisonment that the defendant is
      serving, whether or not the sentence of imprisonment being served
      resulted from the conduct that is the basis of the revocation of
      probation or supervised release.

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U.S.S.G. § 7B1.3(f) (emphasis added).

      Prior to sentencing, Aguirre-Cordero’s counsel moved for a downward

departure, citing extraordinary family circumstances that allegedly warranted

expedited deportation. As a general matter, family responsibilities, including in

Aguirre-Cordero’s case the need to provide financial support for sick family

members, are a discouraged basis for downward departure, but the district court

has discretion to grant such departure. See United States v. Gauvin, 173 F.3d

798, 807; U.S.S.G. § 5H1.6. “[A] district court may depart based on family

circumstances ‘only if the factor is present to an exceptional degree or in some

other way makes the case different from the ordinary case where the factor is

present.’” Gauvin, 173 F.3d at 807 (quoting Koon v. United States, 518 U.S. 81,

96 (1996)). In the present case, the district court denied Aguirre-Cordero’s

request for downward departure. We lack jurisdiction to review a district court’s

failure to depart downward absent the court’s clear misunderstanding of its

discretion to depart. United States v. Coddington, 118 F.3d 1439, 1441 (10th Cir.

1997). Because the record shows that the district court understood its discretion,

but chose not to exercise it, we have no jurisdiction to consider the propriety of

its decision.




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      In sum, Aguirre-Cordero’s sentence falls within the applicable guideline

range. We see no issues in this case that might properly be the subject of an

appeal. Accordingly, counsel’s motion to withdraw is GRANTED, defendant’s

motion to appoint counsel is DENIED and we AFFIRM.

      The mandate shall issue forthwith.


                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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