                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               APR 1 1999
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                           No. 98-4126
 v.
                                                     (D.C. No. 97-CR-317-B)
                                                        (District of Utah)
 FRANK DORMAN,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.



      Frank Dorman appeals his sentence for violation of 18 U.S.C. § 641, which

prohibits theft of government property. Dorman asserts that the district court

erred when it refused to grant his motion, pursuant to U.S.S.G. § 5H1.4, for

downward departure from the Sentencing Guidelines based on his health

problems. Dorman’s attorney has determined that Dorman’s appeal is wholly

frivolous. She has therefore filed both a motion to withdraw as attorney of record


      *
        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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
and a corresponding Anders brief outlining Dorman’s argument for a downward

departure. See Anders v. California, 386 U.S. 738, 744 (1967). Anders requires

that such a brief must refer to “anything in the record that might arguably support

the appeal.” Id. A copy of counsel’s brief was furnished to Dorman, and he had

the opportunity to respond or to raise any additional points. He has not done so.

Based on our own independent review of the record, we conclude that Dorman’s

claim is wholly without merit. We grant counsel’s motion to withdraw and affirm

Dorman’s sentence.

      Pursuant to a plea bargain, Dorman pled guilty to one count of theft of

government property and the remaining four counts against him were dismissed.

The district court sentenced Dorman to twelve months in prison followed by three

years of supervised release. Although the court denied Dorman’s motion for a

downward departure for medical reasons, it directed that Dorman be incarcerated

in a facility equipped to handle his health problems.

      Section 5H1.4 of the Sentencing Guidelines provides that “an extraordinary

physical impairment may be a reason to impose a sentence below the applicable

guideline range; e.g., in the case of a seriously infirm defendant, home detention

may be as efficient as, and less costly than, imprisonment.” The district court’s

refusal to grant such a departure does not confer appellate jurisdiction unless the

district court “erroneously interpreted the Guidelines as depriving it of the power


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to depart based on the proffered circumstances.” United States v. Castillo, 140

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

      The record in this case indicates that the district court was aware of its

discretion to depart downward from the Guidelines, but concluded, after hearing

argument regarding Dorman’s condition and the existence of prison facilities

sufficient to treat his health problems, that Dorman was not entitled to a

downward departure under U.S.S.G. § 5H1.4. Moreover, “[i]f the record is

ambiguous concerning the district court’s awareness of its discretion to depart

downward, we presume the court was aware of its authority.” United States v.

Nelson, 54 F.3d 1540, 1544 (10th Cir. 1995) (citing United States v. Rodriguez,

30 F.3d 1318, 1319 (10th Cir. 1994)).

      AFFIRMED. Counsel’s motion to withdraw is GRANTED. The mandate

shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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