                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         MAR 25 2003
                     UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                              Clerk
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 02-2097
 v.                                              (D.C. No. CR-00-957-BB)
                                                       (New Mexico)
 EMAD AL-MOSAWI,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


      Emad Al-Mosawi pled guilty to one count of distribution of less than five

grams of a mixture or substance containing cocaine base in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C), and one count of possession of a firearm in furtherance

of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Prior to

sentencing, Al-Mosawi moved for a downward departure, primarily on the basis


      *
         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judgment is not binding precedent, except under the doctrines of law of the case,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.
that he had previously deserted from the Iraqi Army and led around 2,000 Iraqi

soldiers to surrender to the allied forces in Saudi Arabia. Following a hearing on

Al-Mosawi’s motion, the court declined to depart downward on this basis and

imposed a forty-six-month sentence on the § 841 count, and a sixty-month

sentence on the § 924 count, to run consecutively. We exercise jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirm.

      On appeal, counsel for Al-Mosawi filed an Anders brief and moved to

withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967)

(permitting counsel who considers an appeal to be wholly frivolous to advise the

court of that fact, request permission to withdraw from the case, and submit a

brief referring to portions of the record that arguably support the appeal). In the

Anders brief, counsel stated that Al-Mosawi’s appeal is frivolous because this

court lacks jurisdiction to review the district court’s refusal to depart downward.

Al-Mosawi was given an opportunity to respond on the merits, but limited his

response to recounting his history as an Iraqi and the dire poverty suffered by him

and his family.

      A defendant may appeal his sentence “if the sentence (1) was imposed in

violation of law; (2) was imposed as a result of an incorrect application of the

sentencing guidelines; (3) was based on the sentencing court’s upward departure;

or (4) was imposed for an offense for which there is no sentencing guideline and


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is plainly unreasonable.” United States v. Castillo, 140 F.3d 874, 887–88 (10th

Cir. 1998) (quoting 18 U.S.C. § 3742(a) (alteration omitted)). Having conducted

“a full examination of all the proceedings” as required by Anders, 386 U.S. at

744, we conclude that the appeal is without merit. Additionally, we have

carefully reviewed the district court’s sentencing calculations and find no error.

      Adopting the presentence report, the court concluded that, as to the § 841

count, Al-Mosawi’s offense level was 23, criminal history category II. Pursuant

to U.S.S.G. § 5K2.13 and based on Al-Mosawi’s mental illness, the court

departed downward to level 22, resulting in a guideline range of 46–57 months’

imprisonment. Al-Mosawi was sentenced at the low end of that range to forty-

six-months’ imprisonment for this count. Furthermore, as contemplated by the

plea agreement, the court imposed the mandatory five-year sentence on the § 924

count, to run consecutive to the forty-six-month sentence on the first count.

       Before sentencing, Al-Mosawi filed a motion for a downward departure,

citing the following grounds: (1) his status as a deserter from the Iraqi army and

subsequent surrender to the allied forces; (2) his profound lack of training,

education or orientation upon arriving in the United States as an Iraqi deserter;

(3) his medical and psychological condition; (4) his fear of harm from Saddam

Hussein’s hit squads; and (5) that his criminal-history score overrepresents his

criminal history. Alternatively, he argued that a combination of any two or more


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of the above factors warrants a downward departure. At a sentencing hearing, Al-

Mosawi testified and also presented testimony from two other witnesses. One

witness stated that Al-Mosawi became a leader of the opposition movement and

led 2,000 soldiers to Saudi Arabia and the other explained how the United States

treated non-Kurdish Iraqi refugees like Al-Mosawi worse than Kurdish refugees.

After Al-Mosawi presented his evidence, the following dialogue took place

between the court and Al-Mosawi’s counsel:

      THE COURT: Well, as I indicated, this tale may be true, and it has been
      verified by one of his colleagues, but frankly, it’s too fantastic on its face
      for me to believe without some kind of official verification. If you think
      you can come up with that, Mr. Cooper, I’m willing to continue the
      sentencing. Otherwise, I’m certainly willing to sentence at the low end of
      the guidelines. But I can not accept this tale at face value, in spite of
      verification by another witness.

                                        ***

      MR. COOPER: Your Honor, would more witnesses suffice, or do you want
      some written documentation from some Government source?

      THE COURT: If there are witnesses from an official source that we
      recognize. Bringing more of his friends in, obviously, I have no way to tell
      whether they were there, what they saw . . . I’m willing to give [this tale]
      more credence at this point, having heard the testimony, but I can’t take it
      at face value without verification that these acts were committed on behalf
      of our Government and to our benefit.

(4 R. at 27.)

      Accordingly, the court adjourned the sentencing hearing to allow Al-

Mosawi additional time to present more evidence of his treatment as an ex-Iraqi


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soldier. When the sentencing hearing resumed in March, Al-Mosawi presented no

more evidence, and the district court refused to grant a downward departure on

the basis of Al-Mosawi’s activities in Iraq.

       We lack jurisdiction to review a district court’s failure to depart downward

absent a clear misunderstanding by the court of its discretion to depart. United

States v. Coddington, 118 F.3d 1439, 1441 (10th Cir. 1997). Correlatively, we

may not conclude that the district court was unaware of its discretion to depart

downward from the Guidelines unless the sentencing judge’s language

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

downward depart.” United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.

1994). Because the record shows that the district court understood its discretion,

but chose not to exercise it given the lack of evidence presented by Al-Mosawi to

support his requested grounds for departure, we do not have jurisdiction to

consider the court’s decision. 1

      In sum, Al-Mosawi’s sentence falls within the applicable guideline range.

We see no issues in this case that might properly be the subject of an appeal.

Accordingly, counsel’s motion to withdraw is GRANTED, and we AFFIRM.



      1
         In his Anders brief, counsel points to two statements by the district court
that arguably would give us jurisdiction here. We have reviewed both statements,
and conclude that neither provides “unambiguous” language indicating that the
court did not understand its discretion to depart downward.

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The mandate shall issue forthwith.


                               ENTERED FOR THE COURT


                               Carlos F. Lucero
                               Circuit Judge




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