                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          JAN 8 2001
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 00-8030
                                                  (D.C. No. 98-CR-44-2-J)
 JOSE ANTONIO MARIN, also known                          (D. Wyo.)
 as Jose Marin, also known as T.
 Marin, also known as Tony Marin,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.


       Defendant Jose Antonio Marin appeals from his fifty-one month sentence,

asserting that the sentencing judge erroneously denied his motion for a downward

departure and, in the alternative, that the United States Sentencing Guidelines are

unconstitutional. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a) and we affirm.




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
                                     Background

      Mr. Jose Antonio Marin was indicted for an assortment of money

laundering offenses in violation of 18 U.S.C. § 1956. Pursuant to a plea

agreement, Mr. Marin pled guilty to Count One of the indictment, conspiracy to

launder money in violation of § 1956(h), and the government dismissed the

remaining counts. In April 2000, Mr. Marin was sentenced to fifty-one months in

prison, a $500 fine, and a $100 special assessment. Mr. Marin, a citizen of

Mexico, entered the United States in 1978 at the age of eighteen. Every member

of Mr. Marin’s family now resides in the United States, and all are citizens.

      Mr. Marin raises three issues on appeal: (1) that his sentence was imposed

in violation of 18 U.S.C. § 3553(a); (2) that the district court erred in refusing to

depart downward on the basis of cultural assimilation; and (3) that the United

States Sentencing Guidelines are unconstitutional under    Apprendi v. New Jersey ,

120 S. Ct. 2348 (2000). We lack jurisdiction to review the sentencing court’s

refusal to depart downward and reject Mr. Marin’s other arguments.



                                      Discussion

      As a preliminary matter, we reject Mr. Marin’s claim that his sentence

violates 18 U.S.C. § 3553(a).   Aplt. Br. at 7. Because Mr. Marin’s “overall

sentence is sufficient, but not greater than necessary, to comply with the . . . goals


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[listed in § 3553(a)], the statute is satisfied.”     Koon v. United States , 518 U.S. 81,

108 (1996) (quotations and citation omitted). Turning to Mr. Marin’s arguments

under the Guidelines, we begin with the familiar rule that “[a]bsent the trial

court’s clear misunderstanding of its discretion to depart, . . . we have no

jurisdiction to review a refusal to depart.”        United States v. Coddington , 118 F.3d

1439, 1441 (10th Cir. 1997) (citations omitted). Mr. Marin asserts that the

sentencing court did not understand its authority to grant his motion for a

downward departure on the basis of cultural assimilation.          Aplt. Br. at 15. We

disagree.

       Mr. Marin contends that he is entitled to a downward departure under

United States v. Lipman , 133 F.3d 726 (9th Cir. 1998), in which the Ninth Circuit

analogized “cultural assimilation” to “family and community ties,” a discouraged

-- but permissible -- factor under U.S.S.G. § 5H1.6.         Id. at 730. The offense at

issue in Lipman was illegal re-entry following deportation; the defendant was

sentenced pursuant to U.S.S.G. § 2L1.2, the Guideline specifically applicable to

unlawful entry or presence in the United States.         Id. at 728. Here, we agree with

the sentencing court’s conclusion that       Lipman is inapplicable to Mr. Marin’s case.

Tr. of Hr’g at 27 (April 28, 2000). The holding in         Lipman is limited to cases in

which cultural assimilation has some bearing on the defendant’s culpability for

the particular offense at issue. A broader application could run afoul of U.S.S.G.


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§ 5H1.10, which prohibits the consideration of national origin in sentencing

determinations.

       The record before us clearly indicates that the sentencing judge understood

his authority to depart downward on the basis of cultural assimilation in certain

cases, but that he did not believe that Mr. Marin’s was an appropriate case for

such a departure . “[C]ertainly assimilation is something that goes a long way

towards either mitigating or explaining in some way why there would be a strong

pull back to violate the law [by illegally re-entering following deportation]. Not

so with the offense charged here, which is money laundering . . . .”      Tr. of Hr’g at

27. Accordingly, the court’s refusal to grant Mr. Marin’s motion for a downward

departure was discretionary, and is therefore unreviewable.       Coddington , 118 F.3d

at 1441.

       We must also reject Mr. Marin’s final argument, that      Apprendi effectively

invalidated the Guidelines by abandoning the heartland test, Aplt. Br. at 33, and

vesting unlimited discretion in sentencing courts,     id. at 15. See generally id. at

21-34. In Apprendi , the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime    beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Id. at 2362-63 (emphasis added). The application of the Guidelines

within the permissible statutory range was not before the Court, and the majority


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in Apprendi “therefore express[ed] no view on the subject beyond what th[e]

Court ha[d] already held.”   Id. at 2366 n.21 (citing Edwards v. United States , 523

U.S. 511, 515 (1998) (noting difference between challenges to sentence in excess

of the statutory maximum and sentence within statutory range); U.S.S.G. § 5G1.1

(providing that Guidelines sentence may not exceed statutory maximum)).

      We see no Apprendi problem with the application of the Guidelines in this

case. Mr. Marin pled guilty to conspiracy to launder money in violation of 18

U.S.C. § 1956(h).    See I R., Doc. 1 at 2-6 (indictment); I R., Doc. 58 at 2 (plea

agreement); see also 18 U.S.C. § 1956(a) (substantive offense incorporated by §

1956(h)). The applicable statutory maximum was twenty years.        See 18 U.S.C. §

1956(a). Mr. Marin’s actual sentence of fifty-one months was well within the

statutory maximum.

      AFFIRMED.

                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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