                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         OCT 31 2003
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 02-1524
          v.                                            (D. Colorado)
 ANTHONY L. WHITENER,                           (D.C. No. 02-CR-010-02-D)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before EBEL , HENRY , and HARTZ , Circuit Judges.


      Defendant Anthony Whitener pleaded guilty to possession of a firearm by a

felon in violation of 18 U.S.C. § 922(g)(1). The district court determined that

Defendant had a total offense level of 19 and a criminal history category of VI

under the United States Sentencing Guidelines. It then sentenced him to 63

months in prison, the minimum sentence in the guideline range. Defendant


      *
        After examining the briefs and appellate record, this panel 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.   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not binding precedent, except under the doctrines of law of the case, res judicata,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.
challenges the sentence on two grounds: that the district court (1) improperly

relied on a presentence report (PSR) produced by a prejudiced probation officer

and containing several errors, and (2) abused its discretion when it refused to

grant a downward adjustment (or departure) from the offense level for

Defendant’s minor role in the offense. Exercising jurisdiction under 18 U.S.C.

§ 3742(a) and 28 U S.C. § 1291, we affirm.

1. PSR

      Defendant makes several objections to the factual assertions in the PSR.

He fails to indicate, however, how any of the alleged factual errors affected his

sentence. None had any bearing on the calculation of his offense level or criminal

history category. For instance, Defendant objects to the characterization of the

incident leading to his 1994 conviction for second-degree assault on a peace

officer, but his criminal history category is calculated on the basis of sentences

served for prior convictions, no matter the nature of the underlying incident. See

USSG § 4A1.1(a–f) & comments. Nor did any alleged factual error adversely

affect the district court’s exercise of discretion, because the court sentenced

Defendant at the bottom of the guideline range.

2. Downward Adjustment

      Defendant contends that he was entitled to a two-point offense-level

reduction under USSG § 3B1.2(b) because he was a “minor participant” in the


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offense. “The sentencing court's determination that [the defendant] was not a

minor participant is a finding of fact which we review for clear error, giving due

deference to the district court's application of the guidelines to the facts.”

United States v. Smith, 131 F.3d 1392, 1399 (10th Cir. 1997). Defendant in

essence argues that he was a minor participant in the sale of the weapon during

which his possession occurred. See Aplt’s Br. at 9–10. But he makes no

argument that he was a minor participant in the possession of a firearm, the crime

that formed the basis of his offense-level calculation. Nor could he. He either

possessed a gun or did not. There were no other participants in his possession of

the gun. This is apparently how the district court analyzed the matter. See

Aplee’s App. at 38 (“[T]he [D]efendant’s charged with possession of a firearm

after having been previously convicted of a felony. . . . [H]e was previously

convicted, he was holding [the gun] on his person . . . , and he admitted those

things happened. So I’m confused about how a role adjustment is appropriate on

this record.”). The district court’s finding that Defendant was not a minor

participant is not clearly erroneous.

3. Downward Departure

      Defendant, perhaps as a result of confusion over terminology, also urges

that the district court abused its discretion in declining to depart downward from

the sentence prescribed by the Sentencing Guidelines on the basis of Defendant’s


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minor role. See Aplt’s Br. at 8. This court lacks jurisdiction to review a district

court’s refusal to depart downward 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.” United States v. Castillo, 140 F.3d

874, 887 (10th Cir. 1998). Because Defendant did not seek in district court a

downward departure on the basis of his minor role, see Aplt’s App. Vol. I at 56

(seeking downward departures for “exceptional remorse” and “lesser harm” only),

the district court had no occasion to consider whether it lacked the authority to

depart from the Guidelines on that basis. This issue not having been preserved

below, we have no jurisdiction to address it on appeal.

      We AFFIRM the district court’s judgment and sentence. We DENY

Defendant’s motion for appointment of counsel.



                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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