                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          JUN 2 2000
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 99-6378
                                                    (D.C. No. 99-CR-15)
 CARLOS ALBERTO ESTUPINAN,                             (W.D. Okla.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Defendant-Appellant Carlos Estupinan appeals from his conviction of

conspiracy to distribute cocaine powder, 21 U.S.C. § 846. He was sentenced to

78 months imprisonment and five years supervised release. On appeal, he

contends that the district court erred in denying his motion for a downward

departure on the misapprehension that it lacked the authority to depart under 18


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
U.S.C. § 3553(b).

      Mr. Estupinan sought a downward departure under § 3553(b) and USSG

§ 5K2.0 on the grounds that the sentence in this case will have unusually harsh

effects on him and his family because of his status a deportable alien. In

response, the trial court determined that the ground urged for departure “just does

not qualify under this Court’s understanding of the controlling authorities so as to

remove it from the heartland of cases or sufficiently distinguish his case as would

be required to grant the defendant’s request . . . .” Sent. Tr. (Sept. 7, 1999) at 61.

We have reviewed the sentencing transcript, including the authority cited therein,

and conclude that, on balance, the trial court was aware of its authority to depart

and chose not to exercise it. Accordingly, we are without jurisdiction to review

the district court’s decision not to depart and DISMISS the appeal. See United

States v. Castillo, 140 F.3d 874, 887-888 (10th Cir. 1998).


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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