                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            NOV 2 2004
                          TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk
 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 03-2261
 v.                                              (D.C. No. CR-02-2149 WPJ)
                                                        (New Mexico)
 LEOBARDO PEREZ-LEANOS,

          Defendant-Appellant.




                                     ORDER *


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.


      Leobardo Perez-Leanos was convicted on one count of illegally re-entering

the United States in violation of 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(2), after

being deported following a previous conviction for an aggravated felony. He

appeals the district court’s sentence, contending the court abused its discretion in

denying his motion for a downward departure from the sentencing guidelines. We

lack jurisdiction to review the matter and therefore dismiss the appeal.

      In 1990, Mr. Perez-Leanos was deported from the United States to Mexico


      After examining appellant’s brief and the 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(G).
The case is therefore submitted without oral argument.
after being convicted for felony possession of marijuana with intent to distribute.

In 2002, a border patrol agent found Mr. Perez-Leanos in New Mexico and in

2003, a jury convicted him of illegal re-entry into the United States. Prior to

sentencing, Mr. Perez-Leanos filed a motion for a downward departure based on

his mother’s illness. According to defendant, he “became distraught over the

possibility that her health condition could result in her death and that his absence

from her might be aggravating her situation. He felt he had no choice but to

attempt to reenter the United States and spend some time with her.” Rec., vol. I,

doc. 52 at 2. He sought the departure based on a theory of duress caused by these

family circumstances. Id. at 1. The government opposed the motion, and the

court heard testimony from Mr. Perez-Leanos before denying his request for a

downward departure. In making its decision, the court stated:

             I’ve also received as part of the motion medical records that reflect
      over the last four years, four different surgeries, all of a minor nature. In
      May of ‘98, there was a laparoscopic appendectomy. In December of ‘99,
      this individual’s mother broke her ankle. It was pinned, and appears to
      have been repaired without incident. In March of 2002, there was a
      gallbladder surgery. And subsequently, there was a rotator cuff surgery
      which repaired a rotator cuff, again without particular problems. I have not
      received any information that indicates any type of continuing medical
      problems, not to say that there isn’t any, but I just don’t have any evidence
      of it.
             Family circumstances, as the cases reflect, is a discouraged factor to
      warrant a downward departure, unless that circumstance is present in an
      unusual or exceptional way. It’s my finding that the circumstances
      reflected by the defendant, while certainly expressing concern for his
      mother, do not fall outside the heartland of family circumstances, generally.
      And it is, therefore, the intention of the Court to deny the motion for

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      downward departure.

 Rec., vol. III at 14-15.

      The government contends we lack jurisdiction to review this matter. In

order for us to have jurisdiction over the denial of a downward departure, the

district court must have unambiguously stated that it was without authority to

depart. See United States v. Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999). In

United States v. Castillo, we explained that it is the district court’s stated reason

for declining to depart downward that determines whether we have jurisdiction:

      [T]he 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. 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.

140 F.3d 874, 887 (10th Cir. 1998) (citations omitted).

      Here, we have no doubt the district court knew it had the authority to depart

but chose not to do so based on Mr. Perez-Leanos’ particular circumstances. The

court reviewed the evidence that Mr. Perez-Leanos presented regarding his

mother’s surgeries before “finding that the circumstances reflected by the

defendant, while certainly expressing concern for his mother, do not fall outside

the heartland of family circumstances, generally.” Rec., vol. III at 15. The court

was not at all ambiguous about its conclusion that Mr. Perez-Leanos’ specific


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circumstances fell within the heartland of cases and therefore did not warrant a

downward departure. Based on the district court’s unambiguous factual

determination, which in no way reflects a legal or categorical understanding by

the court that it lacks discretion to depart for family circumstances, we lack

jurisdiction to consider the departure issue.

      We DISMISS the appeal for lack of jurisdiction.


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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