                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               AUG 20 1998
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                 No. 97-2396
                                                     (D. Ct. No. CR-97-280-JP)
 MANUEL GUILLEN-OROZCO,                                     (D. N. Mex.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and KELLY, Circuit Judges.


      Defendant Manuel Guillen-Orozco appeals from his conviction for

possession with intent to distribute a controlled substance in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(B). He pleaded guilty to that charge on August

13, 1997, and was subsequently sentenced to thirty months in prison. He seeks

review of the district court’s refusal to grant his motion for a downward

departure. Because the plea agreement that he entered into with the government

included a waiver of appeal provision, in order to pursue his downward departure


      *
        This order and judgment is not binding precedent, except under the doctrines of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.
appeal, he asserts that he did not knowingly and voluntarily waive the right to

appeal his sentence. We dismiss the defendant’s appeal of the district court’s

refusal to depart downward because we have no jurisdiction to review such

discretionary decisions. Accordingly, we need not review whether the defendant

knowingly and voluntarily waived the right to appeal because the defendant has

not preserved any issues for our review.

      At sentencing, the defendant moved for a downward departure on the basis

that he had extremely pressing family responsibilities and that he was a first-time

offender who had provided assistance to the government. The court denied his

motion. The following exchange occurred at the sentencing hearing between the

trial court and counsel for the defendant:

      THE COURT:          I’ll deny the motion for downward departure. It’s not
                          that my heart isn’t going out to this fellow, but legally, I
                          don’t think I can do it. Do you have anything else you
                          wish to say on behalf of your client before I impose
                          sentence?
      MS. MANDEL:         Your Honor . . . , I was wondering if there’s any
                          possibility that we could — since the Court is saying
                          that he doesn’t have a legal right to make this departure,
                          that is an appealable issue, then we would ask —
      THE COURT:          That I don’t have the legal right?
      MS. MANDEL:         I believe that’s what you’re saying, that —
      THE COURT:          Oh, absolutely not. I have the authority. I have the
                          legal right. I choose not to do so.
      MS. MANDEL:         Okay. I just wanted to clarify that, Your Honor.
      THE COURT:          No, I acknowledge I can do it, but I also acknowledge
                          that, under the law, I can’t do it on [sic] this case.
      MS. MANDEL:         But I think that means that, under the law, that in this
                          case you don’t have a legal right to do it.

                                           -2-
        THE COURT:          In this case, he doesn’t fit the applicable factors for a
                            downward departure. I recognize what they are. I’m
                            saying he doesn’t fit them. Now, if you think that means
                            I’m not exercising my discretion, fine. It seems like, to
                            me, I am.
        MS. MANDEL:         Then you’re exercising your discretion.
        THE COURT:          Yes.

Sentencing Tr. at 5-6.

The defendant seeks review of the district court’s denial on the same grounds that

he presented to the district court. The government argues that this court has no

jurisdiction to review the district court’s refusal to depart downward. We agree.

        In United States v. Castillo, 140 F.3d 874 (10 th Cir. 1998), this Circuit

made clear that we have no jurisdiction in cases such as this. There, the court

said:

                We clarify here that the courts of appeals cannot exercise jurisdiction
        to review a sentencing court’s refusal to depart from the sentencing
        guidelines except in the very rare circumstance that the district court states
        that it does not have any authority to depart from the sentencing guideline
        range for the entire class of circumstances proffered by the defendant. This
        exception does not apply when a sentencing court concludes under the
        defendant’s particular circumstances that it does not have the authority to
        depart.

Id. at 887 (emphasis in original) (citations omitted). The above-quoted colloquy

between the district court and Guillen-Orozco’s attorney demonstrates that the

court merely concluded that the defendant’s particular circumstances did not

warrant a downward departure. Under the rule of Castillo, we have no power to

review such a decision.

                                           -3-
      Accordingly, we DISMISS the defendant’s appeal of the district court’s

refusal to grant a downward departure. Because we dismiss the defendant’s

appeal, we need not reach the question whether his waiver of appeal in the plea

agreement was knowing and voluntary.

                                      ENTERED FOR THE COURT,


                                      Deanell Reece Tacha
                                      Circuit Judge




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