                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUN 26 1997
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 96-1524
v.                                                 (District of Colorado)
                                                 (D.C. No. 96-CR-196-M)
ELIZABETH HELMLING,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.


      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 cause is

therefore ordered submitted without oral argument.

      Appellant Elizabeth D. Helmling pleaded guilty to one count of mail fraud

in violation of 18 U.S.C. § 1341. Following a sentencing hearing, the district


      *
       This order and judgment is not binding precedent, except under the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.
court sentenced Helmling to imprisonment for a term of twelve months and one

day. On appeal, Helmling contends that district court erred when it refused to

depart downward pursuant to section 5K2.13 of the United States Sentencing

Guidelines. 1 Finding itself without jurisdiction, this court dismisses Helmling’s

appeal.

      “A discretionary refusal to depart downward is not reviewable by this court

unless it appears from the record the sentencing court erroneously believed the

Guidelines did not permit a downward departure.” United States v. Nelson, 54

F.3d 1540, 1544 (10th Cir. 1995). Furthermore, because “‘the district courts have

become more experienced in applying the Guidelines and more familiar with their

power to make discretionary departure decisions under the Guidelines,’” this

court will only review a refusal to depart downward where the district 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.


      1
          Section 5K2.13 of the United States Sentencing Guidelines provides:

      If the defendant committed a non-violent offense while suffering
      significantly reduced mental capacity not resulting from the
      voluntary use of drugs or other intoxicants, a lower sentence may be
      warranted to reflect the extent to which reduced mental capacity
      contributed to the commission of the offense, provided that the
      defendant’s criminal history does not indicate a need for
      incarceration to protect the public.

U.S.S.G. § 5K2.13 (1995).

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1994) (quoting United State v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir.),

cert. denied, 114 S. Ct. (1993)). Thus, because section 5K2.13 is couched in

discretionary terms, United States v. Eagan, 965 F.2d 887, 893 (10th Cir. 1992),

this court can review the district court’s refusal to depart downward only if the

district court unambiguously stated that it was without authority to depart.

Rodriguez, 996 F.2d at 246; United States v. Nelson, 54 F.3d 1540, 1544 (10th

Cir. 1995) (If 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.”).

      The record of the sentencing hearing does not contain a clear statement on

the part of the district court indicating that it erroneously thought it was without

power to depart downward. Accordingly, this court lacks jurisdiction to hear

Helmling’s appeal. Rodriguez, 996 F.2d at 246; Nelson, 54 F.3d at 1540.

Helmling’s appeal is hereby DISMISSED for lack of appellate jurisdiction.

                                                ENTERED FOR THE COURT,



                                                Michael R. Murphy
                                                Circuit Judge




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