                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAY 17 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                     No. 01-2259
                                                  (D.C. No. CR-01-117-LH)
 RICARDO FLORES-VENEGAS,                              (D. New Mexico)

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before EBEL, BALDOCK and HARTZ, Circuit Judges.


      Defendant-Appellant Ricardo Flores-Venegas challenges the district court’s

refusal to depart downward when sentencing him for illegally reentering the

United States following deportation for an aggravated felony, in violation of

8 U.S.C. § 1326. Flores-Venegas offered four grounds to justify a downward

departure: 1) his juvenile status at the time of the underlying aggravated felony;

2) his cultural assimilation; 3) his agreement not to contest the Government’s

effort to have him deported again; and 4) a combination of these factors.

      *
        This order and judgment is not binding precedent, except under the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.
      It is well-settled 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 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); see also United States v. Fortier, 180 F.3d 1217,

1231 (10th Cir. 1999) (noting that this “rule has been stated countless times”).

“This exception does not apply when a sentencing court concludes under the

defendant’s particular circumstances that it does not have the authority to depart.”

Castillo, 140 F.3d at 887 (emphasis omitted). Crucially, this court must “treat

ambiguous statements made by district judges as though the judge was aware of

his or her legal authority to depart but chose instead, in an exercise of discretion,

not to depart.” Fortier, 180 F.3d at 1231. “Accordingly, unless the judge’s

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

downward depart, we will not review his decision.” Id. (internal quotation marks

omitted).

      Flores-Venegas argues that, in this case, “the sentencing court’s statements

regarding its authority demonstrate that it believed it did not have the discretion

to consider the factors put forth by Mr. Flores-Venegas, either individually or




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together.” (App’t Br. at 9.) The statements focused on by Flores-Venegas

occurred during the following exchange at the sentencing hearing:

      Defendant. Coun.: I believe my reasoning is set out in my motion [for
                        a downward departure] . . . . He’s reentry of a
                        deported alien. He’s going to be deported as a
                        result of this and go back to Mexico. The problem
                        is he doesn’t even speak much Spanish. He’s going
                        to be going back to Mexico where he has no family.
                        Everyone’s here. They’re in the courtroom for him.
                        He has his family here, his wife.

                  This was all a result of a charge when he was a juvenile,
                  though he was sentenced as an adult. It even has a
                  juvenile number, his conviction. He’s not the typical
                  defendant that stands before this Court on a reentry. He is
                  different. He’s been suffering because he has nowhere to
                  go there. What we expect from him I do not know. He
                  was sent there after serving this offense that he was
                  convicted of at age 17, no family there. He came back to
                  his family. He’s done wrong. He knows he’s done wrong,
                  and he readily admitted his error. . . . Your Honor, for
                  these reasons we believe that the – that he does not fit the
                  typical defendant and that a downward departure would be
                  warranted in this case.

      Court:      Well, I don’t think he fits the typical defendant. He
                  certainly fits the same role as many of the defendants that
                  we see, where they basically spent their life in the United
                  States, but then they’re going to be deported. I mean, it’s
                  – your story is not the first one that I have heard. What
                  you’re talking about is a Congressional action, not judicial
                  action. Your motion for downward departure will be
                  denied. . . .
      ....

      Court:      . . . . You’re caught on the horns of a dilemma. I don’t –
                  I don’t have any idea what to tell you, because, as I say,
                  it’s a legislative matter, not a judicial matter at this stage

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                    of the game. You’ll be remanded to the custody of the
                    United States Marshals.

(Tr. 2-5.)

      A defendant’s extensive ties to the United States have been recognized as a

potential ground for departure where he is convicted of illegal reentry, but only

under “extraordinary circumstances.” United States v. Lipman, 133 F.3d 726, 730

(9th Cir. 1998). Admittedly, the court’s rejection of the departure request,

coupled with its statement that Flores-Venegas does not “fit[ ] the typical

defendant” would seem to suggest that the court thought it lacked authority even

to depart under unusual circumstances. However, the court followed that

statement by asserting that Flores-Venegas’s circumstances are not unusual, as

“many of the defendants that we see . . . spent their life in the United States.”

(Tr. 3.) These subsequent statements suggest that the district court did not find

that Flores-Venegas presented a sufficiently extraordinary case to justify a

downward departure.

      The court’s references to the need for legislative action, rather than judicial

action, reasonably could be interpreted as referring to the Commission’s decision

not to provide a departure for defendants who illegally reenter the country

because they have lived most of their lives in the United States. The

Commission’s failure to recognize departure on this ground does not, however,

prevent the district court from departing on such a ground under unusual

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circumstances. See Koon v. United States, 518 U.S. 81, 109 (1996) (recognizing

that, as long as ground has not been prohibited by Guidelines, departure is

permissible if case is outside “heartland” of cases governed by particular

Guideline). The district court’s statements are, at a minimum, ambiguous

evidence that the district court may have realized that it had authority to depart

based on Flores-Venegas’s ties to this country, but only under extraordinary

circumstances, and concluded that such circumstances were not shown. In this

regard, the district court did not unambiguously state that it lacked authority to

depart for the entire class of circumstances at issue – i.e., for all defendants who

illegally reentered the country because of their ties to the country – but only that

the facts of Flores-Venegas’s case did not justify such a departure under the

Guidelines as currently written.

      Accordingly, we do not have jurisdiction over the district court’s rejection

of Flores-Venegas’s departure request, and this appeal is DISMISSED.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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