                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 15 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-3221
                                                (D.C. No. 00-CR-10008-01-JTM)
    MARTIN RONQUILLO-HERRERA,                              (D. Kan.)
    also known as MARTIN H.
    RONQUILLO,

                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before PORFILIO, ANDERSON,             and BALDOCK, Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         The defendant was convicted, following the entry of a guilty plea, of

unlawful reentry of a deported alien. The government recommended a three point


*
      This order and judgment is not binding precedent, except under the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.
reduction for acceptance of responsibility, see U.S.S.G. S 3E1.1, and moved for a

downward departure of two levels pursuant to U.S.S.G. § 5K1.1. At the

sentencing hearing, defense counsel argued for a more extensive departure. The

district followed the government’s recommendation and granted its motion for the

two level departure, sentencing the defendant to 60 months incarceration. We

dismiss for lack of jurisdiction.

      The defendant appeals the district court’s denial of his request for a more

extensive downward departure. Defense counsel has filed an Anders Brief and a

motion to withdraw, suggesting that the court is without jurisdiction to review the

sentence. See Anders v. California, 386 U.S. 738 (1967). The defendant has not

filed a response to the brief and motion submitted by counsel, although he was

provided with a copy of counsel’s response and given an opportunity “to raise any

points he chooses.” Anders, 360 U.S. at 744.

      It is well established that this court lacks jurisdiction to review the extent

of a downward departure. United States v. Fortier, 180 F.3d 1217, 1230 (10th

Cir. 1999). See also United States v. McHenry, 968 F.2d 1047, 1048-49 (10th

Cir. 1992) (holding that this court lacks jurisdiction to review the district court’s

decision to reduce only the defendant’s criminal history category and not the base

offense level as well in deciding to grant a downward departure). The defendant

does not point to any error of law or misapplication of the sentencing guidelines.


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See 18 U.S.C. § 3742(a)(1) & (2) (a defendant may appeal a sentence which “was

imposed in violation of the law,” or “as the result of an incorrect application of

the sentencing guidelines....”). Accordingly, we have no jurisdiction to entertain

this appeal.

      Defense counsel’s motion to withdraw is granted and the appeal is

DISMISSED. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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