                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAR 25 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 04-2219
          v.                                     (D.C. No. CR-04-814-LH)
 ANTONIO ACUÑA-VALENZUELA                             (D. New Mexico)
 aka Antonio Valenzuela Acuña,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Defendant Antonio Acuña-Valenzuela pleaded guilty to illegal reentry by a

deported alien previously convicted of an aggravated felony. 8 U.S.C.

§ 1326(b)(2). At the sentencing hearing defense counsel told the court that

Defendant’s wife had severe medical problems and that Defendant’s sole purpose



      *
        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not binding precedent, except under the doctrines of law of the case, res judicata,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.
in illegally entering the United States was to earn money to pay her medical bills.

Defendant did not challenge anything in the presentence report. Nor did he

request a downward departure. The district court imposed a sentence of 41

months, the bottom of the Guidelines range of 41-51 months.

      Defendant argues on appeal that he was entitled to a downward departure

because, as a result of his wife’s ill health and his reason for illegal reentry, his

conduct was “‘atypical’ and ‘significantly differ[ed] from the norm’ of conduct

covered by the guideline.” Aplt. Br. at 3 (quoting U.S.S.G. § 1A1.1 cmt. 4(b)

¶ 1). Defendant’s argument fails because “[c]ourts of appeals cannot exercise

jurisdiction to review a sentencing court’s refusal to depart from the Guidelines,

either upward or downward, unless the court refused to depart because it

interpreted the Guidelines to deprive it of the authority to do so.” United States v.

Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999). When the record contains only

ambiguous statements, we presume that the court “was aware of his or her legal

authority to depart but chose instead, in an exercise of discretion, not to depart.”

Id. Here, nothing in the record suggests that the district court thought it lacked

discretion to depart. Of course, the district court had no occasion to express its

view on the matter, because Defendant did not request a departure. But that just

means that Defendant forfeited the opportunity to obtain the court’s view for the




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record. Defendant should not be in a better position on appeal than if he had

raised the issue below and the court had responded.

      Moreover, even if we reviewed the merits of Defendant’s claim, he would

not prevail. Because he did not raise the departure issue in district court, the

applicable standard of review is plain error. To prevail on plain-error review,

Defendant must show that the district court (1) committed error, (2) the error was

plain, and (3) the error affected his substantial rights. United States v. Cotton,

535 U.S. 625, 631 (2002). If those three conditions are satisfied, this court has

discretion to notice the error if “the error seriously affect[ed] the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 631-32 (internal

quotation marks omitted).

      There is no plain error here. Defendant’s circumstances are not the kind

that normally merit departure. “In sentencing a defendant . . ., family ties and

responsibilities are not ordinarily relevant in determining whether a departure may

be warranted.” U.S.S.G. § 5H1.6. Because “family circumstances and

responsibilities are a permissible but discouraged factor,” they merit departure

“only if the factor is present to an exceptional degree or in some other way makes

the case different from the ordinary case where the factor is present.”

United States v. Gauvin, 173 F.3d 798, 807 (10th Cir. 1999) (internal quotation

marks omitted). We have held that circumstances similar to Defendant’s did not


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merit such a departure. See United States v. Reyes-Rodriguez, 344 F.3d 1071,

1076 (10th Cir. 2003) (chronically ill mother and blind father); United States v.

Archuleta, 128 F.3d 1446, 1451 (10th Cir. 1997) (sole responsibility to care for

two children and diabetic mother). Failure to depart downward was probably not

error at all; it certainly was not plain error.

       Finally, we need not address the effect of the Supreme Court’s recent

decision in United States v. Booker, 125 S. Ct. 738 (2005). Defendant’s brief was

filed November 29, 2004, after the Supreme Court had decided Blakely v.

Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), and had granted a writ of

certiorari in Booker on August 2, 2004. Indeed, both Blakely and the Supreme

Court’s grant of a writ of certiorari in Booker preceded Defendant’s August 17,

2004, sentencing hearing. Defendant did not raise a Booker issue either at his

hearing or on appeal. We decline to do so sua sponte.

       We AFFIRM the judgment below.

                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge




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