                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               APR 1 1999
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                           No. 98-1284
 v.
                                                     (D.C. No. 97-CR-262-D)
                                                      (District of Colorado)
 LEO ALVAREZ,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.



      Leo Alvarez appeals his sentence for attempting to possess heroin in

violation of 18 U.S.C. § 1791. 1 We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and affirm.




      *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
      1
       18 U.S.C. § 1791(a)(2) provides that anyone possessing or attempting to possess
contraband while in prison shall be subject to imprisonment or fine as stipulated in
§ 1791(b). Section 1791(d)(1)(C) lists narcotic drugs as contraband.
      While serving a prison term for bank robbery, Alvarez was charged with

attempting to possess heroin. The sentencing court rejected a plea agreement

Alvarez entered with the government, and sentenced him to a twenty-seven-month

prison term and three years of supervised release. Alvarez argues that the court

erred when it refused to reduce his base offense level under § 2X1.1(b)(1) of the

United States Sentencing Guidelines (“U.S.S.G.”). He also claims that the court

erroneously denied his motion for a downward departure pursuant to U.S.S.G.

§ 5K2.0, and that the statutory definition of heroin is so vague and ambiguous as

to warrant application of the rule of lenity.

      We review a district court’s application and legal interpretation of the

Sentencing Guidelines de novo, but we review the court’s factual findings for

clear error. See United States v. Bolden, 132 F.3d 1353, 1355 (10th Cir. 1997).

      Under U.S.S.G. § 2X1.1(b)(1) a court may reduce the base offense level if

the defendant is charged with attempting to commit an offense. But the court may

refuse to grant such a reduction if “the defendant completed all the acts the

defendant believed necessary for successful completion of the substantive offense

or the circumstances demonstrate that the defendant was about to complete all

such acts but for apprehension or interruption by some similar event beyond the

defendant’s control.” U.S.S.G. § 2X1.1(b)(1).




                                          -2-
      The facts show that but for interruption by prison authorities, Alvarez’s

sister would have transferred the heroin to him. He would have thus committed

the substantive offense of heroin possession. We conclude that the district court

did not err in refusing to reduce Alvarez’s offense level by three levels under

U.S.S.G. § 2X1.1(b)(1).

      We also reject Alvarez’s argument that the district court erroneously

refused to depart downward under U.S.S.G. § 5K2.0. “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.” United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir.

1995) (citation omitted). Upon review of the record, we conclude that the district

court was aware of its discretionary authority to depart downward when it refused

to do so.

       Appellant argues that the relevant federal drug statute defines heroin as

both a controlled substance and a narcotic. The base offense level for possession

of a narcotic is 13, whereas the base offense level for possession of a controlled

substance is 6. See U.S.S.G. § 2P1.2(a)(2) and (3). Thus, appellant contends that

the statute and the Guidelines are ambiguous and vague, and the rule of lenity

should apply. His base offense level, he argues, should be calculated as if he

attempted to possess a controlled substance.


                                         -3-
      When read as a whole, the statute is not ambiguous. It clearly states that

certain controlled substances, like heroin, are also narcotics. See 21 U.S.C.

§ 812(b)(10) (listing heroin as an “opium derivative”); 21 U.S.C. § 802(16)

(defining opium derivatives as a type of “narcotic drug”). There was no error in

calculating appellant’s base offense level at 13.

      AFFIRMED. The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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