                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 28 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 01-1154
                                                   (D.C. No. 00-CR-345-N)
    RAUL GALARZA-CANAS, also                              (D. Colo.)
    known as Raul Canas Galarza, also
    known as Gabriel Carnales Pena,

                Defendant-Appellant.


                            ORDER AND JUDGMENT           *




Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.



         Defendant Raul Galarza-Canas appeals his conviction and sentence for

illegally reentering the United States after deportation, in violation of 8 U.S.C.

§ 1326(a). Violation of this statute carries a base prison sentence of two years,

but § 1326(b)(2) provides for prison terms of up to twenty years for aliens who



*
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(f) 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
reenter the country illegally and have a previous aggravated felony conviction.

Defendant stipulated that he had been convicted of two prior aggravated felonies.

He was convicted following a jury trial and sentenced to 125 months

imprisonment. We have jurisdiction over the appeal of his conviction pursuant to

28 U.S.C. § 1291. With regard to the appeal of his sentence, we have jurisdiction

over his “acceptance of responsibility” claim pursuant to 18 U.S.C. § 3742(a), but

conclude we have no jurisdiction over his “downward departure” claim.

       Defendant’s appellate counsel has filed a brief pursuant to       Anders v.

California , 386 U.S. 738 (1967), and has moved to withdraw.          Anders holds that if

counsel finds an appeal “to be wholly frivolous, after a conscientious examination

of it, he should so advise the court and request permission to withdraw.”         Id.

at 744. Counsel must also submit to the court a brief addressing anything in the

record that arguably supports the appeal.    Id. In the Anders brief, defendant’s

counsel raises an appellate issue regarding the government’s preemptory

challenge of a juror who was Hispanic. As required, a copy of counsel’s          Anders

brief and motion to withdraw were provided to defendant,        see id. , who filed a pro

se brief, raising two sentencing issues. Pursuant to our duty under         Anders , we

have conducted an independent review of defendant’s proceedings.             Id. Because

we agree that there are no non-frivolous issues on appeal, we grant counsel’s

motion to withdraw and affirm defendant’s conviction and sentence.


                                            -2-
       Defendant first contends that the district court erred in granting the

government’s peremptory challenge of an Hispanic juror, claiming the juror was

improperly excluded solely on the basis of his race.      See Batson v. Kentucky ,

476 U.S. 79, 89 (1986) (precluding use of peremptory challenge to exclude

potential juror solely on the basis of race). After defendant raised a       Batson

challenge to the juror’s exclusion, the government explained that it struck the

juror because he was a convicted felon and had stated, on voir dire questioning,

that he did not believe his case had been fairly investigated or handled by the

government and that his resentment of the government might affect his view of

defendant’s case. Defendant did not offer any argument or fact to show the

government’s explanation was pretextual. We conclude the district court did not

err in finding the government offered a race-neutral explanation and that

defendant failed to show the reason was a pretext for race discrimination.        See

United States v. Sneed , 34 F.3d 1570, 1578–80 (10th Cir. 1994) (explaining

three-step Batson analysis).

       Defendant next challenges his sentence, referring generally in his pro se

supplementary brief to a motion filed by his trial counsel “disputing the points

used by the government to increase [his] sentence.” (Supplemental Opening Br.

at 1.) Defendant’s trial counsel actually filed two motions requesting a downward

adjustment or departure. In one, counsel requested a two-level reduction from


                                             -3-
defendant’s base offense level for acceptance of responsibility pursuant to

§ 3E1.1 of the United States Sentencing Guidelines, claiming he was entitled to

such a reduction because he stipulated to the fact that he was found in this

country on the date and at the place charged and that he had two prior aggravated

felony convictions. The district court denied the two-level reduction under

§ 3E1.1, finding “absolutely no evidence that the defendant [had] really accepted

responsibility. . . . Indeed, he’s almost defiant in his position that he’s in this

country no matter what the law says. . . .” (R. Supp. Vol. 3, at 7–8.)

       We review the acceptance of responsibility determination as a question of

fact under the clearly erroneous standard.     United States v. Janusz , 135 F.3d 1319,

1325 (10th Cir. 1998); see also U.S.S.G. § 3E1.1, cmt. n.5 (stating that trial

court’s determination of whether a defendant has accepted responsibility is

subject to great deference on review). The fact that defendant chose to go to trial

does not automatically bar him from receiving a downward adjustment for

acceptance of responsibility; there may be “rare” situations where “a defendant

may clearly demonstrate an acceptance of responsibility for his criminal conduct

even though he exercises his constitutional right to a trial.” U.S.S.G. § 3E1.1,

cmt. n.2. This is not that rare situation. Although defendant stipulated to his past

aggravated felonies so that evidence of these crimes would not be presented to the

jury, he did not admit to illegally reentering the country after deportation or


                                             -4-
otherwise accept responsibility for his actions. We find no error in the district

court’s determination not to grant this requested two-level reduction.

       In the second motion filed by defendant’s trial counsel, defendant requested

a downward departure from criminal history category VI under U.S.S.G. § 4A1.3,

claiming that category VI significantly over-represented the seriousness of his

criminal history. Specifically, he claimed that several of his twenty-seven

criminal convictions were almost ten years old and several were for non-serious

misdemeanors and minor felonies. The district court denied defendant’s request

for a downward departure under U.S.S.G. § 4A1.3, finding that defendant’s

criminal history was a “strong” category VI and that even if it ignored some parts

of his criminal history, defendant would still remain in category VI. (R. Supp.

Vol. 3, at 9.) It is well-established law in this circuit that an appellate court does

not have jurisdiction to review a district court’s discretionary refusal to depart

downward from the sentencing guidelines unless the district court misunderstands

its authority to depart.   United States v. McHenry , 968 F.2d 1047, 1048 (10th Cir.

1992). There is nothing in the record to suggest that the district court

misunderstood its authority to depart downward under U.S.S.G. § 4A1.3. Thus,

we lack jurisdiction to consider this allegation of error.   1




1
       Defendant makes a general reference to the Supreme Court’s recent
decision in INS v. St. Cyr , 533 U.S. 289 (2001), apparently in the mistaken belief
                                                                      (continued...)

                                             -5-
      Counsel’s motion to withdraw is   GRANTED . Defendant’s conviction and

sentence are AFFIRMED .


                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




1
 (...continued)
that something in that decision invalidates some of his criminal history category
points. He includes no arguments as to how he believes this decision relates to
his conviction or sentence and we will not attempt to invent arguments on his
behalf. Drake v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991)
(“Despite the liberal construction afforded pro se pleadings, the court will not
construct arguments or theories for the plaintiff in the absence of any discussion
of those issues.”).

                                         -6-
