                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 25 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-3384
                                               (D.C. No. 00-CR-10057-01-MLB)
    JOSE A. CHAVIRA-MONTES,                                (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY , Senior
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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.
      The defendant appeals the   district court’s denial of his request for a more

extensive downward departure in his sentence. We dismiss for lack of

jurisdiction.

      The defendant was convicted, following the entry of a guilty plea, of

possession with intent to distribute cocaine in violation of 21 U.S.C. § 841. The

government moved for a downward departure based on the defendant’s substantial

assistance. See U.S.S.G. § 5K1.1. In its written motion, the government did not

recommend a specific degree of departure but merely requested that the sentence

be “reduced to a level that is deemed appropriate by the Court.” At the

sentencing hearing, defense counsel argued for a sentence within 56 and 70

months. The government in response to inquiry from the court suggested a

sentence of between 84 and 90 months. The court sentenced the defendant to 80

months.

      Defense counsel has filed an Anders Brief and a motion to withdraw,

suggesting that the court is without jurisdiction to review the sentence. See

Anders v. California, 386 U.S. 738 (1967). The defendant has not filed a

response to the brief and motion submitted by counsel, although he was provided

with a copy of counsel’s brief and given an opportunity “to raise any points he

chooses.” Anders, 360 U.S. at 744.




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      It is well established that this court lacks jurisdiction to review the extent

of a downward departure. United States v. Fortier, 180 F.3d 1217, 1230 (10th

Cir. 1999). See also United States v. McHenry, 968 F.2d 1047, 1048-49 (10th

Cir. 1992) (holding that this court lacks jurisdiction to review the district court’s

decision to reduce only the defendant’s criminal history category and not the base

offense level as well in deciding to grant a downward departure). The defendant

does not point to any error of law or misapplication of the sentencing guidelines.

See 18 U.S.C. § 3742(a)(1) & (2) (a defendant may appeal a sentence which “was

imposed in violation of the law,” or “as the result of an incorrect application of

the sentencing guidelines....”). Accordingly, we have no jurisdiction to entertain

this appeal.

      Defense counsel’s motion to withdraw is granted and the appeal is

DISMISSED. The mandate shall issue forthwith.



                                                Entered for the Court




                                                Stephen H. Anderson
                                                Circuit Judge




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