                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JAN 9 2004
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 02-2260
                                                       (New Mexico)
 ADALBERTO TREVIZO-ROBLES,                      (D.Ct. No. CR-02-45 MCA)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, 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)(2); 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        This order and judgment is not binding precedent except under the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.
      Defendant Aldaberto Trevizo-Robles pled guilty to one count of

distribution of methamphetamine for which he was sentenced to eighty-seven

months incarceration followed by five years supervised release. Trevizo-Robles

appeals the five years supervision portion of the sentence. We exercise

jurisdiction under 28 U.S.C. § 1291 to consider whether we may review this

sentence. Because we lack jurisdiction for sentence review, we dismiss the

appeal.

      On April 23, 2002, Trevizo-Robles pled guilty to one count of Distribution

of More than 500 Grams of a Mixture Containing Methamphetamine in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The minimum penalty for this offense is

no less than ten years imprisonment followed by no less than five years

supervised release. Id. Prior to sentencing, the United States Probation Office

prepared a presentence report and addendum to the report. The addendum

recommended Trevizo-Robles be sentenced pursuant to 18 U.S.C. § 3553(f),

referred to as the “safety-valve” provision for a drug offender with a minimal

criminal history. This provision directs a district court to “impose a sentence

pursuant to [United States Sentencing Guidelines] . . . under section 994 of Title

28 without regard to any statutory minimum . . . .” Id. Thus, as it relates to post-

incarceration supervision, the district court would not be required to impose the

statutory minimum of five years of supervised release. 21 U.S.C. § 841(b)(1)(A).


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Instead, the appropriate sentence under the safety-valve provision would be no

less than three, and no more than five, years supervision. USSG § 5D1.2(a)(1).

      At the sentencing hearing, the district court applied the safety-valve

provision and suggested eighty-seven months imprisonment followed by three

years supervised release was an appropriate sentence. When asked if he agreed,

the prosecutor responded, “[t]he only thing I would suggest to the Court is I

believe the term of supervised release should be five years, Your Honor. It’s an

A number. It’s ten to life.” The district judge replied, “All right. Let me – give

me one second here. The term of the supervised release will be five years.” The

district court finalized the sentence as amended without objection.

      The Government contends we lack jurisdiction to review the district court

judge’s sentencing decision. We have an independent duty to examine our own

jurisdiction prior to consideration of the merits. Lopez v. Behles, 14 F.3d 1497,

1499 (10th Cir.), cert. denied, 513 U.S. 818, reh’g denied, 513 U.S. 1033 (1994);

United States v. Rubio, 231 F.3d 709, 711 (10th Cir. 2000). The jurisdiction for

review of a criminal sentence is governed by 18 U.S.C. § 3742. Under that

section, “a sentence within the Guidelines may not be appealed unless imposed in

violation of law, or as a result of an incorrect application of the Guidelines.”

United States v. Garcia, 919 F.2d 1478, 1479 (10th Cir. 1990). 1 “Absent ‘facial

      1
         18 U.S.C. § 3742(a)(1)-(4) permits a defendant to appeal his sentence only
“if the sentence: (1) was imposed in violation of law; (2) was imposed as a result

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illegality, improper calculations, or clearly erroneous findings,’ we may not

review the district court's decision to impose a sentence at a particular point

within the proper sentencing range.” United States v. Neary, 183 F.3d 1196, 1198

(10th Cir. 1999) (citation and quotation omitted). See United States v. Big

Medicine, 73 F.3d 994, 998 (10th Cir. 1995).

      If the district court's sentencing decision rested on a mistaken belief that it

lacked legal power to exercise sentencing discretion, the sentence is imposed in

violation of the law. United States v. Ruiz, 536 U.S. 622, 627 (2002). Trevizo-

Robles alleges the district court judge’s “sudden and unexplained switch” from

three to five years supervision was such a mistake. (Appellant Br. at 8). His

allegation is based on two theories.

      First, he asserts the district judge must have misunderstood the prosecutor’s

comment about supervised release and assumed five years was the legal minimum.

He bolsters his assertion by noting the district judge’s initial comments regarding

the minimal incarceration period and the minimal supervised release period.

Trevizo-Robles then surmises that had the prosecutor truly been making a

suggestion to the district court judge, he would have recommended an increased




of an incorrect application of the sentencing guidelines; or (3) is greater than the
sentence specified in the applicable guideline range . . . ; or (4) was imposed for
an offense for which there is no sentencing guideline and is plainly
unreasonable.”

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 sentence as well as an increased supervised release period. He credits the

 prosecutor too much, and the district court judge too little.

       In his second attempt to show mistake, Trevizo-Robles points to an error in

 the presentence report. The report incorrectly stated the appropriate range for

 supervised release as three years to life, rather than three years to five years. He

 argues the judge intended to impose a minimum sentence in this case, and

 probably was misled by this error into believing the five year term was

 comparably low in the permissible range of sentences. He offers nothing to

 support this convenient supposition.

       Speculation will not remove the jurisdictional bar to Trevizo-Robles’

 claims. He fails to identify any evidence in the record indicating that the district

 judge was misled by the error in the presentence report. The prosecutor’s

 statements that the crime was “an A felony” and the initial incarceration term was

 “ten to life” are true statements. The range for supervised release under the

 safety-valve provision is three to five years. The district judge explicitly noted

 the correct minimum in her initial suggestion and later imposed a permissible

 term within the Guideline range.

      Indeed, there is no evidence in the record that the district judge deviated

from the proper exercise of her discretion in any way. Even were there some

ambiguity in the record, “we presume the court was aware of its authority.” United


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States v. Nelson, 54 F.3d 1540, 1544 (10th Cir. 1995). Absent specific evidence to

the contrary, we presume the district court knows the requirements of the laws it

applies. United States v. Heredia-Cruz, 328 F.3d 1283, 1290 (10th Cir. 2003).

      There is no dispute that the term of supervised release imposed by the district

court is within the range specified in the Guidelines and no evidence to suggest the

district judge misunderstood the law. Thus, there is no jurisdictional basis for

review and accordingly, we DISMISS the appeal.

                                       Entered by the Court:



                                       TERRENCE L. O’BRIEN
                                       United States Circuit Judge




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