                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 22 2001
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-2188
                                                   (D.C. No. CR-99-1106-JP)
    SAUL GONZALEZ-PORTILLO,                                (D. N.M.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before PORFILIO , ANDERSON , and BALDOCK , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to render a decision on the briefs without oral argument. See Fed. R.

App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted

without oral argument.

         Mr. Gonzalez-Portillo pled guilty to the charge of reentry of a deported

alien. The district court denied appellant’s motion for downward departure from



*
      This order and judgment is not binding precedent, except under the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.
the Sentencing Guidelines, and Mr. Gonzalez-Portillo appealed. Counsel for

Mr. Gonzalez-Portillo filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967). Neither Mr. Gonzalez-Portillo himself nor the government filed a

responsive brief.

      In the motion for downward departure submitted to the district court,

Mr. Gonzalez-Portillo argued: (1) his criminal history was over-represented by

the Sentencing Guideline points assigned in his presentence report; (2) he is

culturally assimilated in the United States; (3) he has family responsibilities;

and (4) the cumulative weight of these factors.

      The district court rejected these arguments. The district court’s remarks

at the sentencing hearing reflect the court’s understanding that it had the authority

to depart downward and chose not to do so on the facts of the case. See

R. Vol. III, Tr. at 3-4. As to whether the presentence report over-represented

Mr. Gonzalez-Portillo’s criminal history, the district court stated: “[I]f anything,

category 5 may understate the defendant’s criminal history. But I think that

Probation correctly analyzed the number of criminal history points and concluded

correctly that the criminal history category in this instance should be 5.” Id. at 3.

As to whether Mr. Gonzalez-Portillo’s cultural assimilation and family

responsibilities should prompt a downward departure, the court stated,

      I’m not sure that downward departure can be based on cultural
      assimilation within the Tenth Circuit and I don’t think that the family

                                          -2-
      ties and responsibilities of Mr. Gonzalez are so extraordinary that
      they fall outside the heartland of cases.
             But even if I had discretion to depart downward on these
      theories, or a combination of them, I would choose not to do so in
      this instance in my discretion.

Id. at 3-4. Although the district court expressed doubt as to whether this circuit

has issued an opinion concerning whether cultural assimilation serves as a basis

for downward departure, the court was unambiguous in its conclusion that

downward departure was not warranted in Mr. Gonzalez-Portillo’s case under

any or all of the factors cited in Mr. Gonzalez-Portillo’s motion for downward

departure.

      In light of the district court’s reasoned, discretionary refusal to depart

downward from the Sentencing Guidelines, this court lacks appellate jurisdiction

to hear an appeal from the sentence imposed. See United States v. Fortier,

180 F.3d 1217, 1231 (10th Cir. 1999); United States v. Castillo, 140 F.3d 874,

887-88 (10th Cir. 1998).

      The motion to withdraw submitted by appellant’s counsel, attorney

Dennis J. Candelaria, is granted. This appeal is hereby dismissed.



                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge

                                         -3-
