                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                             SEP 3 1997

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 96-3346
                                               (D.C. No. 95-40074-01-RDR)
 DARRIN L. ROBINSON also known                           (Kansas)
 as Rick Lee, also known as Darrin L.
 Lloyd,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, 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); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

      Darrin L. Robinson pled guilty to two counts of armed robbery in violation

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
of 18 U.S.C. § 1951, and one count of unlawful possession of a firearm by a felon

in violation of 18 U.S.C. § 922(g). The government filed a motion under

U.S.S.G. § 5K1.1 for a downward departure of two years from the minimum

guideline otherwise applicable to Mr. Robinson based upon his substantial

assistance to the government. The district court chose to depart slightly below the

government’s recommendation. Mr. Robinson appeals. His counsel has

determined that the appeal is wholly frivolous, and has accordingly filed a motion

to withdraw as counsel and an Anders brief outlining Mr. Robinson’s argument.

See Anders v. California, 386 U.S. 738, 744 (1967).

      In his Anders brief, Mr. Robinson’s counsel argues only that the sentencing

court abused its discretion in failing to grant a greater degree of departure

because the facts warranting departure were particularly compelling. Counsel

recognizes, however, that this court has consistently held it is without jurisdiction

to review such a claim. Pursuant to Anders, we provided Mr. Robinson a copy of

counsel’s Anders brief and allowed him time “to raise any points that he

chooses.” Id. Mr. Robinson has chosen not to respond. Anders holds that if we

find Mr. Robinson’s appeal wholly frivolous, we should grant counsel’s request to

withdraw and proceed to a decision on the merits. Id.

      A defendant may appeal a sentence imposed pursuant to the sentencing

guidelines if the sentence was imposed in violation of the law, was imposed as a


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result of an incorrect application of the guidelines, or was greater than that

specified in the applicable guideline. 18 U.S.C. § 3742(a). We have consistently

rejected the assertion that a complaint about the degree of downward departure,

whether cast as a violation of the law or a misapplication of the guidelines, is

reviewable. See, e.g., United States v. McHenry, 968 F.2d 1047, 1048 (10th Cir.

1992); United States v. Bromberg, 933 F.2d 895, 897 (10th Cir. 1991).

Consequently, we are clearly without jurisdiction under section 3742(a) to

consider Mr. Robinson’s argument. 1 The appeal is thus wholly frivolous.

      We grant counsel’s request to withdraw and DISMISS the appeal for lack

of jurisdiction.

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Chief Judge




      1
        While the degree of departure must be reasonable, the matter is committed
to the discretion of the sentencing court and in most cases is entitled to
substantial deference upon review in an appeal by the government. See United
States v. Collins, No. 96-5039, 1997 WL 437152, at *4-*5 (10th Cir. Aug. 5,
1997). Our review here reveals that the district court was aware of its authority to
depart downward and carefully considered all the relevant factors in determining
the degree of departure. Accordingly, were we able to consider the merits, we
would find no abuse of discretion requiring that the sentence be vacated.

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