                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              DEC 9 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 04-1196
                                                            (D. Colo.)
 JAVIER CANAS-BRISENO, also                          (D.Ct. No. 02-CR-293-B)
 known as Canas,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and BARRETT and BRORBY, Senior
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)(2); 10th Cir. R. 34.1.9(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          This order and judgment is not binding precedent except under the doctrines of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.
      Appellant Javier Canas-Briseno, a federal prisoner represented by counsel,

pled guilty to one count of knowingly and intentionally conspiring to distribute

and possess with the intent to distribute five kilograms or more of a mixture or

substance containing a detectable amount of cocaine, a Schedule II controlled

substance; and fifty grams or more of methamphetamine or 500 grams or more of

a mixture containing a detectable amount of methamphetamine, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II), and (b)(1)(A) (viii); and § 846. The district

court sentenced Mr. Canas-Briseno to eighty-four months imprisonment followed

by five years supervised release. Pursuant to an Anders brief filed by his counsel,

Mr. Canas-Briseno appeals the district court’s sentence. See Anders v. California,

386 U.S. 738, 744 (1967). We dismiss Mr. Canas-Briseno’s appeal.



      Following an eighteen-month investigation, a superceding indictment

against Mr. Canas-Briseno was entered, charging him with thirty-two counts of

drug-related crimes, together with a charge of illegal reentry into the United

States after deportation. In a plea agreement with the government, Mr. Canas-

Briseno agreed to plead guilty to one count of conspiring to distribute and

possession with the intent to distribute substances containing certain amounts of

cocaine and methamphetamine, in exchange for the government’s agreement to

dismiss the other counts and request both a three-level decrease for acceptance of


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responsibility under United States Sentencing Guidelines (U.S.S.G.) §3E1.1, and

a downward departure for substantial assistance to authorities under U.S.S.G.

§5K1.1. At sentencing, the district court applied the government’s requested

three-level decrease for acceptance of responsibility and the downward departure

for substantial assistance, and imposed a sentence of eighty-four months

imprisonment. However, the district court denied Mr. Canas-Briseno’s request

for a recommendation to the Bureau of Prisons for placement in a California

facility, noting the Bureau of Prisons need not follow judicial recommendations

on placement of federal prisoners.



      After Mr. Canas-Briseno filed a timely notice of appeal, his counsel filed

both an Anders appeal brief alleging no meritorious appellate issues exist, and a

motion requesting an order permitting him to withdraw as counsel. See Anders,

386 U.S. at 744. Specifically, his counsel points out the district court sentenced

Mr. Canas-Briseno within the applicable guideline range and applied the

requested decrease for acceptance of responsibility and downward departure for

substantial assistance to law enforcement authorities. As a result, he suggests this

court lacks jurisdiction to review the sentencing decision because the district

court did not erroneously apply the Guidelines or sentence Mr. Canas-Briseno in

violation of the law. In addition, Mr. Canas-Briseno’s counsel suggests no


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appealable issues exist with respect to his placement in a California facility

because the Bureau of Prisons has broad discretion, under 18 U.S.C. § 3621, in

designating the place of imprisonment, leaving the district court in this case with

no jurisdiction to direct or mandate Mr. Canas-Briseno’s placement. Pursuant to

Anders, this court gave Mr. Canas-Briseno an opportunity to raise points in

response to the Anders brief, to which he did not respond. Id.



        When reviewing an application of the Sentencing Guidelines, “[t]his court

reviews the district court’s legal conclusions under the Sentencing Guidelines de

novo and its factual findings for clear error, affording great deference to the

district court’s application of the Guidelines to the facts.” United States v. Eaton,

260 F.3d 1232, 1237 (10th Cir. 2001). Under 18 U.S.C. § 3742(a), a sentence

which falls within the Sentencing Guidelines cannot be successfully appealed

unless it is imposed in violation of law, as a result of an incorrect application of

the Guidelines, or is otherwise premised on facial illegality, improper

calculations, or clearly erroneous fact findings. See United States v. Garcia, 919

F.2d 1478, 1479, 1481 (10th Cir. 1990) (relying on 18 U.S.C. § 3742(a)(1) and

(2)).



        As to placement in a particular facility for purposes of incarceration, we


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have long held the place of confinement is not part of the sentence imposed by the

district court, but a matter which the Attorney General, and now the Bureau of

Prisons, has authority to determine. See Prows v. Federal Bureau of Prisons, 981

F.2d 466, 468-69 n.3 (10th Cir. 1992) (explaining the Bureau of Prisons, under 18

U.S.C. § 3621(b), exercises jurisdiction over the placement of prisoners, replacing

the Attorney General as the entity vested with such authority); Bowen v. United

States, 174 F.2d 323, 324 (10th Cir. 1949) (applying 18 U.S.C. § 4082 (repealed

and replaced by 18 U.S.C. § 3621(b)), which vested the Attorney General with

jurisdiction over the place of a prisoner’s confinement). Moreover, as the United

States Supreme Court has held, “federal prisoners generally enjoy no

constitutional right to placement in any particular penal institution.” Prows, 981

F.2d at 468-69 n.3 (citations omitted).



      With these principles in mind and after a careful review of the record

concerning Mr. Canas-Briseno’s sentence, we conclude the district court did not

impose his sentence in violation of law or as a result of an incorrect application of

the Sentencing Guidelines, and that his sentence is not otherwise improper under

18 U.S.C. § 3742. Clearly, Mr. Canas-Briseno’s sentence falls within the

appropriate guideline range, and as his counsel points out, he received both the

three-level decrease and downward departure requested, about which he has no


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cause to complain. Similarly, as his counsel explains, the district court clearly

lacks authority to mandate his placement in a particular facility. As a result, no

meritorious appellate issues are presented for our review and we lack jurisdiction

to review the sentence.



      Accordingly, we grant counsel’s request to withdraw and DISMISS Mr.

Canas-Briseno’s appeal.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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