                                                                                  F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                   DEC 17 1997
                                     TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA

               Plaintiff-Appellee,                     Case No. 97-2078
 v.
                                                       (D.C. CR 95-639-01 SC)
 DANNY RAY SMITH,                                      (District of New Mexico)

               Defendant-Appellee.


                               ORDER AND JUDGMENT*


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.


       Danny Ray Smith appeals the district court’s denial of his motion for downward

departure pursuant to section 5K2.12 of the United States Sentencing Guidelines. The

record indicates that the district court properly understood its authority to depart

downward and exercised its discretion in refusing to do so. Accordingly, we conclude

that we lack jurisdiction over Mr. Smith’s appeal.1



       *
               This order and judgment is not binding precedent, except under the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
             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); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
                                   I. BACKGROUND

       The government charged Mr. Smith with the November 17, 1995 robbery of the

Western Commerce Bank in Hobbs, New Mexico and with using a firearm during that

robbery. See Rec. vol. I, doc 8. Subsequently, Mr. Smith plead guilty to both armed

bank robbery (a violation of 18 U.S.C. § 2113(a) and (d)) and carrying a firearm during a

crime of violence (a violation of 18 U.S.C. § 924(c)).

       Following his plea, Mr. Smith filed a motion for downward departure and a

request for an evidentiary hearing. See Rec. vol. I, doc. 34. In his motion for departure,

Mr. Smith argued that two of his acquaintances had ordered him to commit the subject

bank robbery in order to repay a gambling debt. According to Mr. Smith, these

acquaintances threatened to harm him and his family if he did not comply. See id. at 5-7.

He contended that these circumstances established that he committed the offense because

of “serious coercion, blackmail or duress,” see id. at 11 (quoting USSG § 5K2.12) and

that, as a result, he was entitled to a downward departure. The government objected to

Mr. Smith’s motion. See Rec. vol. I, doc. 36. It contended that the facts alleged by Mr.

Smith as justifying departure were not true.

       The district court conducted an evidentiary hearing on Mr. Smith’s departure

motion on February 20, 1997. Mr. Smith testified in his own behalf and presented

testimony from several other witnesses. The government then presented several

witnesses in support of its position that the Mr. Smith’s version of the events leading up


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to the bank robbery was not true. After hearing the evidence, the district court concluded:

“[T]he Court cannot find, based upon the testimony and evidence presented, the

circumstances which would show a serious coercion, blackmail, or duress under 5K2.12

which would justify the Court in engaging a downward departure so the Motion for

Downward Departure is denied.” Rec. vol. V at 145 (Tr. of Feb. 20, 1997, Evidentiary

Hr’g). The court sentenced Mr. Smith to a term of imprisonment of thirty-three months

on the bank robbery count and sixty months on the firearm count. It ordered the sentence

on the firearm count to run consecutively with the sentence on the bank robbery count.



                                       DISCUSSION

       A discretionary decision not to depart downward from the Guidelines is not

reviewable by this court unless the record establishes that the district court erroneously

believed that it lacked the authority to depart. United States v. Nelson, 54 F.3d 1540,

1544 (10th Cir. 1995); United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir. 1994).

In order to be reviewable, the district court’s erroneous statement as to its lack of

authority must be unambiguous. Rodriguez, 30 F.3d at 1319. “Absent such a

misunderstanding on the sentencing judge’s part, illegality, or an incorrect application of

the guidelines, we will not review the denial of a downward departure.” Id.

       Upon review of the record, we find no indication that the district court

misunderstood its authority to depart. Under USSG § 5K2.12, “If the defendant


                                              3
committed the offense because of serious coercion, blackmail or duress, under

circumstances not amounting to a complete defense, the court may decrease the sentence

below the applicable guideline range.” Here, the district court heard evidence concerning

these factors and, in announcing its decision to deny Mr. Smith’s motion for downward

departure, cited the appropriate standard for departure under § 5K2.12. See Rec. vol. V,

at 145 (Tr. of Feb. 20, 1997, Evidentiary Hr’g). Accordingly, we lack jurisdiction to

review the district court’s decision. See United States v. Wright, 37 F.3d 358, 361 (7th

Cir. 1994) (concluding that the court lacked jurisdiction to review the district court’s

refusal to depart under USSG § 5K2.12); United States v. Gio, 7 F.3d 1279, 1291 (7th

Cir. 1993) (same); United States v. Amparo, 961 F.2d 288, 292 (1st Cir. 1992) (same).

       Therefore, for the reasons set forth above, we DISMISS Mr. Smith’s appeal for

lack of jurisdiction.

       The mandate shall issue forthwith.

                                                  Entered for the Court,



                                                  Robert H. Henry
                                                  Circuit Judge




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