                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 20 1999
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                         No. 98-1404
 v.
                                                   (D.C. No. 98-CR-248-M)
 PEDRO MONTOYA-LONGORIA,                             (District of Colorado)

               Defendants-Appellants.


                            ORDER AND JUDGMENT           *




Before SEYMOUR , Chief Judge, BALDOCK , and HENRY , 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(G). The case is therefore

ordered submitted without oral argument.

       The Defendant, Mr. Montoya-Longoria, pleaded guilty to re-entry

subsequent to deportation following an aggravated felony in violation of 8 U.S.C.

§ 1326(b)(2). On appeal, Mr. Montoya-Longoria challenges his sentence. For


       *
        This order and judgment is not binding precedent, except under the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 reasons explained below, we dismiss Mr. Montoya-Longoria’s appeal for lack

of jurisdiction.

      Mr. Montoya-Longoria argues the sentencing court erred in refusing to

grant a downward departure under § 5K2.0 of the Sentencing Guidelines, which

provides that a court may depart downward if it finds that there was a mitigating

circumstance "of a kind" which the Sentencing Commission did not "adequately

take[ ] into consideration . . . in formulating the guidelines that should result in a

sentence different from that described." U.S.S.G. § 5K2.0; 18 U.S.C. § 3553(b).

When Mr. Montoya-Longoria was deported, he received an INS Form I-294

incorrectly stating that the punishment for illegally reentering the United States

was two instead of twenty years. He argues that the sentencing court should have

considered the effect the erroneous INS Form I-294 had on his decision to

illegally return to the United States.

      Mr. Montoya-Longoria asserts the sentencing court should have considered

the fact that, under a cost-benefit analysis, the risk of the erroneously stated two

year sentence is outweighed by the benefit of a higher income available to aliens

and their families in the United States. He implicitly asserts that if he had been

aware that the penalty was twenty years, he would not have taken the chance of

re-entering the country illegally. Mr. Montoya-Longoria argues that the




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sentencing court erred because it believed it did not have discretion under the

Guidelines to consider the erroneous INS form.

       “Absent the trial court’s clear misunderstanding of its discretion to depart,

or its imposition of a sentence which violates the law or incorrectly applies the

guidelines, we have no jurisdiction to review a refusal to depart [from the

Guidelines].” United States v. Belt , 89 F.3d 710, 714 (10th Cir. 1996);   see also ,

United States v. Nelson , 54 F.3d 1540, 1544 (10th Cir. 1995) (“A discretionary

refusal to depart downward is not reviewable by this court unless it appears from

the record the sentencing court erroneously believed the Guidelines did not permit

a downward departure.”) . “If the record is ambiguous concerning the district

court’s awareness of its discretion to depart downward, we presume the court was

aware of its authority.”   Nelson , 54 F.3d at 1544.

       The United States argues that we lack jurisdiction to review the sentencing

court’s discretionary decision not to depart from the Guidelines. The government

asserts that the following statement by the sentencing judge indicates that he

believed that he had discretion to depart from the Sentencing Guidelines on the

basis of the erroneous INS form:

              [O]n the downward departure based on the misleading form of
       the Immigration and Naturalization Service which was used in this
       case, and after review of the Court of Appeals decisions that the
       government has cited, I’ve determined not to follow my previous



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      ruling, which was made without the benefit of the guidance of those
      cases. 1

             Certainly, as [defense counsel] Mr. Szekely points out, [the
      court of appeals decisions cited by the government] pre-dated the
      Supreme Court opinion in [Koon v. United States, 116 S.Ct 2035
      (1996)], but nonetheless, I think that those courts recognized that
      downward departure was within the discretion of the Court, but
      strongly emphasized that this practice by the Immigration and
      Naturalization Service should not be used   as grounds of the
      departure, principally in my view, based on the deterrent factor of
      these long prison terms for violating the Immigration laws.

Rec. vol. 3, at 13-14 (emphasis added).

      After careful review, we agree with the government that the sentencing

court believed it had discretion to permit a downward departure. In explaining its

decision, the court relied on court of appeals decisions it read to grant the

sentencing judge discretion to depart. At most, the record is ambiguous, and we

must “presume the court was aware of its authority.”    Nelson , 54 F.3d at 1544.

      Therefore, we lack jurisdiction to consider Mr. Montoya-Longoria’s

allegation of error. Accordingly, we DISMISS his appeal.

                                         Entered for the Court,

                                         Robert H. Henry
                                         Circuit Judge




      1
         That “previous ruling” was issued in United States v. Lorenzo Loya-
Caraveo , Case No. 95-CR-125-M. There, the judge exercised his discretion to
grant a downward departure on the ground that the INS gave the defendant the
same erroneous advisement that it gave to Mr. Montoya-Longoria.

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