                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               AUG 26 1997
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                 No. 96-2122
                                                     (D. Ct. No. CR-95-330-JC)
 ANGELO DeHERRERA,                                           (D. N. Mex.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and LUCERO, Circuit Judges.



      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

      This appeal is from an order of the district court sentencing defendant

DeHerrera to a term of imprisonment of 135 months after a plea agreement in



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
which defendant pled guilty to Count V of a superseding indictment, which

charged him with accessory after the fact to a carjacking resulting in death. The

district court imposed the sentence within the applicable Sentencing Guideline

range and refused to depart downward after a request for a downward departure

by the United States.

      Defendant DeHerrera appeals arguing that the district court should have

granted a downward departure based upon U.S.S.G. § 3B1.2 arguing that the

district judge should have granted defendant the downward departure because of

his mitigating role in the underlying offense. The record makes clear that the

district judge knew that he had the power to grant a downward departure.

Downward departures from applicable Sentencing Guideline ranges are left to the

sound discretion of the trial court. It is well settled law in this circuit that absent

a misunderstanding on the sentencing judge’s part, illegality, or an incorrect

application of the guidelines, we will not review the denial of a downward

departure. United States v. Garcia, 919 F.2d 1478, 1481 (10th Cir. 1990). We

DISMISS this appeal for lack of appellate jurisdiction.

                                         ENTERED FOR THE COURT,


                                         Deanell Reece Tacha
                                         Circuit Judge




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