                                                                     F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     OCT 6 2004
                                    PUBLISH
                                             PATRICK FISHER
                                                  Clerk
                 UNITED STATES COURT OF APPEALS
                          TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 01-2378

 FILABERTO DIAS-RAMOS,

          Defendant-Appellant.


                    Appeal from the United States District Court
                          for the District of New Mexico
                             (D.C. No. CR-00-1587 LH)


Michael A. Keefe, Assistant Federal Public Defender (Joseph W. Gandert,
Assistant Federal Public Defender, on the briefs), Albuquerque, New Mexico, for
Defendant-Appellant.

James Miles Hanisee, Assistant U.S. Attorney (David C. Iglesias, United States
Attorney, and Norman Cairns, Assistant U.S. Attorney, on the brief),
Albuquerque, New Mexico, for Plaintiff-Appellee.


Before SEYMOUR and LUCERO, Circuit Judges, and CASSELL, * District
Judge.


SEYMOUR, Circuit Judge.


      *
       The Honorable Paul G. Cassell, United States District Judge, United States
District Court for the District of Utah, sitting by designation.
      Filaberto Dias-Ramos pled guilty to possession with intent to distribute one

kilogram and more of heroin, in violation of 21 U.S.C. § 841(a)(1). He appeals

the district court’s judgment and sentence, contending the court erroneously

determined it lacked the authority to depart downward from the sentencing

guidelines. We conclude we lack jurisdiction and dismiss the appeal.



                                         I

      Mr. Dias-Ramos consented to a police search of a suitcase in his possession

at a bus station in Albuquerque, New Mexico, on November 17, 2000. The

officers discovered 3.92 kilograms of heroin in a false bottom in the suitcase.

Mr. Dias-Ramos pled guilty to possession with intent to distribute one kilogram

and more of heroin.

      Using the 2000 version of the sentencing guidelines, the United States

Probation Office calculated Mr. Dias-Ramos’s base offense level at 34. His total

offense level was 27 after reductions for acceptance of responsibility, minor

participation, and the safety valve provision. The government stipulated to the

reductions. Prior to sentencing, Mr. Dias-Ramos filed a motion for a downward

departure based on, among other factors, family circumstances and aberrant

behavior. In an addendum to its presentence report, the Probation Office

considered Mr. Dias-Ramos’s arguments and explained why, in its view, the


                                        -2-
guidelines, and particularly the adjustments, had taken into consideration all of

Mr. Dias-Ramos’s relevant circumstances. The Probation Office thus asserted

that Mr. Dias-Ramos’s case was not outside the heartland of those cases the

guidelines were intended to cover, and therefore did not warrant departure.

      During his sentencing hearing before the district court, Mr. Dias-Ramos

presented a third ground for departure he had not raised in his previous written

motion. He contended that because he was merely a courier with no knowledge of

the amount or type of contraband he was transporting, his case was one that fell

outside the sentencing heartland and therefore a departure was warranted. 1 The

court denied the requested departure:

      Well, I have some serious sympathy for the defendant and his family.
      But this is not the first time that I’ve seen someone in the same
      situation who has admitted transporting contraband, and not knowing
      the amount of the contraband, and having faced sentencing according
      to the guidelines, which takes into consideration the amount of the
      contraband. It’s not an unusual set of circumstances.
             I have to agree that sometimes the sentencing guidelines are
      so–what appears to be too harsh a sentence, based upon the amount
      of contraband that’s being transported. And it always is more harsh,
      it appears, at least, when you have someone who comes from the type
      of family situation that this defendant does.
             However, I have to agree with the probation office that this


      1
         For sentencing purposes, a defendant is responsible for the drugs linked to
conduct he personally undertakes, such as Mr. Dias-Ramos’s carrying the suitcase
in this case, even if the defendant is unaware of the quantity of drugs in his
possession. See United States v. Lockhart, 37 F.3d 1451, 1454 (10th Cir. 1994)
(where driver knew purpose of a trip was to obtain cocaine, quantity of drugs
attributed to him did not need to be foreseeable).

                                         -3-
      does not take him out of the heartland of the cases for which the
      guidelines have been designed. And maybe that’s a failure of the
      guidelines to not take into consideration personal circumstances of
      the defendant and his family, but they don’t. There is no evidence
      before the Court that the defendant has previously engaged in such
      activity, but just that fact alone does not make the result of aberrant
      behavior apply. I have a great deal of sympathy for him, as I’ve said,
      and the family ties and responsibilities, the economic, the depressed
      area in which he and his family reside. His two children, the period
      of time that he has worked continuously as a truck driver and lived
      with and financially supported his wife are all, I think, wonderful
      things; but that does not, according to my understanding of the
      application of the guidelines, permit me to depart. It would be nice
      if I–if I had that kind of discretion. I don’t think I do.
              And it may be that you want to have this matter considered by
      the Tenth Circuit, but I’m going to have to deny the motion for a
      downward departure for the reasons that I’ve stated.
              Unfortunately, there are many aliens, including illegal aliens,
      who are in the same situation as the defendant. And for that reason, I
      conclude that he’s not outside the heartland of the cases to which the
      guidelines apply.

Sent. tr. at 23-25. The court sentenced Mr. Dias-Ramos to seventy months.

      On appeal, Mr. Dias-Ramos does not contend the district court erred in

denying a downward departure based on family circumstances or aberrant

behavior. We therefore address only his argument regarding the potential

departure for lack of knowledge.



                                         II

      “For most convictions, a sentencing court may depart from the sentence

range set by the Guidelines only if it ‘finds that there exists an aggravating or


                                         -4-
mitigating circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the guidelines.’”

United States v. Lang, 364 F.3d 1210, 1213-14 (10th Cir. 2004) (quoting 18

U.S.C. § 3553(b)(1)). Based on our review of the cases, a district court tends to

do one of three things when denying a request for a departure: (1) make an

unambiguous statement that a category of requested departures, as a matter of

law, never constitutes valid grounds for departure and therefore the court has no

authority to depart; (2) make an unambiguous statement that the defendant’s

particular circumstances do not warrant departure; or (3) make a more general or

ambiguous statement that renders it difficult to ascertain the court’s rationale for

denying the departure. We have declared in this circuit that we have jurisdiction

to review only cases in the first category. See United States v. Castillo, 140 F.3d

874, 887 (10th Cir. 1998); United States v. Rodriguez, 30 F.3d 1318, 1319 (10th

Cir. 1994). 2 As we explained in Castillo:


      2
        Mr. Dias-Ramos correctly points out that our caselaw regarding our
jurisdiction to review downward departure sentencing appeals appears to be out of
step with all the other circuits. If the district court’s sentencing language is
ambiguous, these other courts either accept jurisdiction, or remand to the district
court for clarification or reconsideration. See, e.g., United States v. Smith, 278
F.3d 605, 609-11 (6th Cir. 2002); United States v. Powell, 269 F.3d 175, 179-80
(3d Cir. 2001); United States v. Lewis, 249 F.3d 793, 795 (8th Cir. 2001); United
States v. Rojas-Millan, 234 F.3d 464, 475 (9th Cir. 2000); United States v.
Thames, 214 F.3d 608, 612 (5th Cir. 2000); United States v. Mignott, 184 F.3d
1288, 1290 (11th Cir. 1999); United States v. Aker, 181 F.3d 167, 172-74 (1st Cir.
                                                                         (continued...)

                                          -5-
      the courts of appeals cannot exercise jurisdiction to review a
      sentencing court’s refusal to depart from the sentencing guidelines
      except in the very rare circumstance that the district court states that
      it does not have any authority to depart from the sentencing guideline
      range for the entire class of circumstances proffered by the
      defendant. This exception does not apply when a sentencing court
      concludes under the defendant’s particular circumstances that it does
      not have the authority to depart.

140 F.3d at 887 (citations omitted).

      Here, the district court was ambiguous with respect to its authority to

depart based on a drug courier’s lack of knowledge of the quantity of drugs he is

carrying. We cannot determine whether the court denied the departure because

(a) the court considered Mr. Dias-Ramos’s asserted lack of knowledge and

determined that the facts of his particular case placed him in the heartland, or (b)

the court believed it lacked legal authority to depart whenever a courier seeks a

departure based on lack of knowledge. The district court denied the departure

after describing the facts of this case as “not an unusual set of circumstances,”


      2
        (...continued)
1999); United States v. Aramony, 166 F.3d 655, 665 (4th Cir. 1999); United
States v. Vahovick, 160 F.3d 395, 398-99 (7th Cir. 1998); United States v.
Graham, 83 F.3d 1466, 1481 (D.C. Cir. 1996); United States v. Ekhator, 17 F.3d
53, 55 (2d Cir. 1994). Nevertheless, absent en banc review or a superceding
opinion from the United States Supreme Court, this panel must apply Castillo and
Rodriguez. See United States v. Lopez, 372 F.3d 1207, 1212 & n.6 (10th Cir.
2004) (“We are bound by the precedent of prior panels absent en banc
reconsideration or a superseding contrary decision by the Supreme Court.”
(quoting In re Smith, 10 F.3d 723, 724 (10th Cir. 1993))). If counsel for Mr.
Dias-Ramos believes that en banc review of the rule in Castillo and Rodriguez is
warranted, an appropriate petition should be filed.

                                         -6-
Sent. tr. at 23, and stating that lack of knowledge is “so common in the cases that

I have had in my court, I can’t tell you how many it might be. It’s so-run-of-the-

mill. It’s what happens.” Id. at 15. The court’s final word on the matter,

however, suggests denial both because Mr. Dias-Ramos’s particular case was

within the heartland of courier-defendants, and because the court believed it

could not depart for the class of circumstances proffered: “[u]nfortunately, there

are many aliens . . . who are in the same situation as the defendant. And for that

reason, I conclude that he’s not outside the heartland of the cases to which the

guidelines apply.” Id. at 24-25.

      The district court did not unambiguously state it lacked authority to depart

from the guidelines for an entire class of circumstances. Pursuant to Castillo and

Rodriguez, therefore, we cannot exercise jurisdiction to review this matter.

Accordingly, we DISMISS the appeal.




                                         -7-
