                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 14 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 99-2118
 v.
                                                (D.C. No. CR-98-0753-SC)
                                                       (Dist. N.M.)
 YSYDRO SANTOS-GARCIA,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Defendant Ysydro Santos-Garcia pleaded guilty to one count of reentry

after removal following a conviction for the commission of an aggravated felony

in violation of 8 U.S.C. § 1326(b)(2). The presentence report determined that

Santos-Garcia’s guideline offense level was 21, and that his criminal history was

VI, yielding a guideline range of 77 to 96 months. Santos-Garcia filed a Motion



      *
        After examining appellant’s brief and the 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)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
for Downward Departure on the grounds that his criminal history was

overrepresented and that he should receive the benefit of the plea bargain offer

that the government had offered to Santos-Garcia when he was first arrested, but

which he had declined to accept. The court denied the motion and sentenced

Santos-Garcia to seventy-seven months’ imprisonment.

       Santos-Garcia requested appeal of his sentence, and his attorney complied

and perfected the appeal. However, Santos-Garcia’s counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and has requested leave to

withdraw for the reason that defendant’s appeal is frivolous. Counsel informed

Santos-Garcia of his motion to withdraw, provided him with a copy of his brief,

and informed Santos-Garcia that he had a right to respond to counsel’s brief.

      In his brief, counsel asserts that Santos-Garcia wanted to challenge his

sentence on two grounds. First, Santos-Garcia argues that the sentencing court

erred when it denied his motion for downward departure, and second, he contends

that his sentence is excessive and violates the Eighth Amendment’s prohibition

against cruel and unusual punishment. Counsel for Santos-Garcia believes both

of these arguments are without merit.

      With regard to Santos-Garcia’s first argument, we have held that 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


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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.” United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998); United

States v. Diaz, 189 F.3d 1239, 1250 (10th Cir. 1999). After reviewing the record,

we find that the district court did not indicate that it believed it lacked authority

to grant the downward departure; instead, the court simply stated that it did not

accept either position advanced by Santos-Garcia. We therefore hold that we lack

jurisdiction to review the sentencing court’s refusal to grant Santos-Garcia’s

motion for downward departure.

      In addition, Santos-Garcia’s argument that his sentence violates the Eighth

Amendment is without merit. This court has held that a sentence within the

guideline range is not excessive, nor is it cruel or unusual. See United States v.

Hughes, 901 F.2d 830, 832 (10th Cir. 1990) (“[I]f a sentence imposed is within

the statutory limits, the appellate court generally will not regard it as cruel and

unusual punishment.” (internal quotations omitted)); United States V.

Youngpeter, 986 F.2d 349, 355 (10th Cir. 1993.) Mr. Santos-Garcia’s sentence

was not only within the guideline range, it was at the bottom of the range.

Clearly, Mr. Santos-Garcia’s sentence is not disproportionate to this crime. See

Harmelin v. Michigan, 501 U.S. 957 (1991) (majority held that imposition of life




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in prison without parole for possession of 650 grams of cocaine did not violate

Eighth Amendment).

      After thorough review of the record on appeal and counsel’s brief, the court

concludes that there are no meritorious issues for appeal. Attorney Peter

Edwards’ motion to withdraw is granted. This appeal is hereby DISMISSED as to

the claim for downward departure and the district court’s sentence is AFFIRMED

as to the Eighth Amendment challenge.

      The mandate shall issue forthwith.

                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




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