                           UNITED STATES COURT OF APPEALS
Filed 6/5/96                        TENTH CIRCUIT

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                              No. 95-3374
               v.                                       (D.C. No. 94-CR-40037)
                                                               (D. Kan.)
 ETTA MAY HOLVECK,

           Defendant - Appellant.




                                   ORDER AND JUDGMENT*


Before TACHA, BALDOCK, and BRISCOE, 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 case is therefore ordered

submitted without oral argument.

       Etta May Holveck appeals the sentence imposed by the district court following her

guilty plea to one count of conspiracy to use interstate commerce facilities in the

commission of murder for hire, in violation of 18 U.S.C. § 371. The government moves

       *
          This order and judgment is not binding precedent, except under the doctrines of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.
to dismiss pursuant to 10th Cir. R. 27.2.1, arguing this court lacks jurisdiction to review a

district court's discretionary decision not to depart from the sentencing guideline range.

       Holveck was charged with one count of conspiracy to use interstate commerce

facilities in the commission of murder for hire and one count of solicitation to use

interstate commerce facilities in the commission of murder for hire, in violation of 18

U.S.C. § 373. Pursuant to Fed. R. Crim. P. 12.2, she filed a notice of intent to rely upon

the defense of diminished mental capacity. Dr. William S. Logan, a forensic psychiatrist,

examined Holveck and concluded she suffered from, inter alia, major depressive disorder

with psychotic features. After reviewing Dr. Logan's diagnosis, the court suspended the

trial to determine if Holveck was competent to stand trial. Dr. Edward Mahoney, a

forensic psychologist, evaluated Holveck and determined she was competent to stand

trial, although he concurred with Dr. Logan's diagnosis.

       Holveck entered into a plea agreement in which she agreed to plead guilty to

conspiracy in exchange for the government's motion for downward departure pursuant to

U.S.S.G. § 5K1.1 and dismissal of the solicitation count. The probation office prepared a

presentence investigation report in which it discussed departure pursuant to § 5K1.1

(substantial assistance to authorities), but not U.S.S.G. § 5K2.13 (diminished capacity).

Holveck did not object to the report and she did not move for downward departure

pursuant to § 5K2.13. At sentencing, she discussed her psychological condition, various

assessments of her condition, and extra-circuit case law regarding § 5K2.13. She also


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pointed to § 5K2.13 as "an additional ground for departure." Append. II at 16. The

district court granted the government's motion for a § 5K1.1 downward departure and

imposed a sentence of 30 months. However, the court rejected Holveck's suggestion of

an additional ground for departure, noting: "The Court doesn't believe that probation is

appropriate in this case. This is a serious offense." Id. at 20.

       We have no jurisdiction to review a district court's discretionary refusal to depart

downward; however, we will exercise review if the court erroneously believed it lacked

authority to depart. United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir. 1995). Our

review of the record indicates the court exercised its discretion not to depart pursuant to

§ 5K2.13. More specifically, the court's brief statement about the seriousness of the

offense and the inappropriateness of probation, which immediately followed Holveck's

§ 5K2.13 argument, indicates to us that the court knew it had authority to depart

downward but chose, in its discretion, not to grant departure.

       Holveck's attempt to fashion the district court's discretionary decision not to depart

downward as a failure to resolve a disputed issue pursuant to Fed. R. Crim. P. 32(c) is not

persuasive. First, her reliance on 32(c)(3)(D) is misplaced. The version of the rule

applicable here does not provide as she contends. Second, assuming she intended to

argue under 32(c)(1), we are persuaded the court addressed its comments to its discretion

to depart under § 5K2.13. When the transcript is read within the context of the entire

sentencing hearing, it becomes clear that Holveck interprets the court's comments in an


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unreasonably restrictive manner. Although brief, the district court directed these

comments to Holveck's § 5K2.13 argument and not, as she seems to contend, simply to

the government's motion pursuant to § 5K1.1. We do not construe the court's comments

as an unambiguous statement of its belief that it lacked authority to depart downward. Cf.

United States v. Rodriguez, 30 F. 3d 1318, 1319 (10th Cir. 1994) ("unless the judge's

language unambiguously states that the judge does not believe he has authority to

downward depart, we will not review his decision").

       Since the district court's discretionary refusal to depart downward was based on

grounds other than the erroneous belief that it lacked authority to depart, we have no

jurisdiction under 18 U.S.C. § 3742.

       DISMISSED for lack of jurisdiction.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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