                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 29 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 03-1366
                                                            (D. Colo.)
 RALPH WAYNE SANCHEZ,                               (D.Ct. No. 03-CR-29-MK)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      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          This order and judgment is not binding precedent except under the doctrines of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.
      Appellant Ralph Wayne Sanchez, a federal prisoner represented by counsel,

pled guilty to one count of possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g) and received a sentence of seventy months

imprisonment. In sentencing Mr. Sanchez, the district court granted his motion

for downward departure based on a finding his criminal history category over-

represented the likelihood he would commit further crimes.



      Subsequently, Mr. Sanchez filed a timely pro se appeal for the purpose of

contesting the degree or extent of downward departure the district court exercised

in sentencing him. Thereafter, his appointed counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738, 744 (1967), concluding Mr. Sanchez’s

“appeal is frivolous in that there is no viable challenge to the rulings made by the

district court at sentencing,” and requesting permission to withdraw from

representation of Mr. Sanchez. Specifically, Mr. Sanchez’s counsel contends this

court lacks jurisdiction to consider Mr. Sanchez’s appeal as the district court

acknowledged its power to depart downward, exercised such power to depart, and

imposed “a sentence below the otherwise applicable guideline range.” Although

the holding in Anders entitles the defendant to raise additional points in response

to counsel’s Anders brief and such opportunity was given in this case, Mr.

Sanchez made no such filing. Id.


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      It is clear this court lacks jurisdiction to review the district court’s

discretionary decision to deny a request for downward departure “unless it

appears from the record the sentencing court erroneously believed the [United

States Sentencing] Guidelines did not permit a downward departure.” United

States v. Nelson, 54 F.3d 1540, 1544 (10th Cir. 1995) (applying standard to denial

of downward departure based on defendant’s criminal history category).

Similarly, when a district court grants a motion to depart downward, the degree of

departure may not be reviewed by this court absent an incorrect application of the

sentencing guidelines. See United States v. Bromberg, 933 F.2d 895, 896-97

(10th Cir. 1991).



      In this case, the district court readily recognized its discretionary power to

grant a downward departure, as evidenced by its exercise of that power when

departing downward under United States Sentencing Guideline §4A1.3(b), based

on a finding Mr. Sanchez’s criminal history category over-represented the

likelihood he would commit further crimes. In so doing, the district court

departed downward from a criminal history category of V to a criminal history

category of IV.



      As to its application of other applicable sentencing guidelines, the district


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court determined the basic offense level for Mr. Sanchez’s violation of 28 U.S.C.

§ 922(g)(1) under U.S.S.G. §2K2.1(a)(2) was 24, because he sustained at least

two felony convictions for crimes of violence. The district court then increased

the offense level by two levels under U.S.S.G. §2K2.1(b)(1)(A) for possession of

three firearms and reduced it three levels under U.S.S.G. §3E1.1(a) for acceptance

of responsibility, for a total offense level of 23. Applying an offense level of 23

to a criminal history category of IV, the sentencing guideline range is seventy to

eighty-seven months, which the district court applied in setting Mr. Sanchez’s

sentence at the lowest end of the sentencing guideline range at seventy months

imprisonment. See U.S.S.G., Ch. 5, Pt. A (Sentencing Table).



      Based on our review of the record and the absence of any showing of

misapplication of the sentencing guidelines, it is clear in this case we lack

jurisdiction to review the degree of the district court’s downward departure. See

Bromberg, 933 F.2d at 896-97. Accordingly, we grant counsel’s request to

withdraw and DISMISS Mr. Sanchez’s appeal.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge



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