                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            NOV 1 1999
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                    Case No. 99-1075
          v.                                         District of Colorado
 JOSE DELFINO SALVADOR                             (D.C. No. 98-CR-414)
 ORTEGA-RIVERA,

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before , SEYMOU R, Chief Judge , and BALDOCK and HENRY , Circuit Judges.


      Jose Ortega-Rivera was convicted of reentry into the United States after

being deported subsequent to two aggravated felony convictions, in violation of 8

U.S.C. § 1326(a) and (b)(2). Mr. Ortega-Rivera was sentenced to fifty-seven

months imprisonment, the minimum term specified within the applicable

guideline range. Mr. Ortega-Rivera seeks to appeal his sentence on the grounds




      *
       This order and judgment is not binding precedent, except under the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.
that the district court erroneously refused to consider relevant departure factors.   1



For the following reasons, we conclude that this court is without jurisdiction to

review the discretionary refusal by a district court to grant a downward departure.

       At sentencing, Mr. Ortega-Rivera argued for a downward departure

pursuant to USSG § 5K2.0, which allows consideration of any factor “of a kind,

or to a degree, not adequately taken into consideration by the Sentencing

Commission.” USSG § 5K2.0 (quoting 18 U.S.C. § 3553(b)). He presented the

following mitigating circumstances in support of a downward departure: he

crossed the border for the sole purpose of retrieving payment for a car he sold

through his legitimate business; he was motivated by the desire to pay for his

wife’s medical expenses; he had no intention of maintaining residence or

employment, or committing a criminal act while in the United States; he was

unaware that his exclusion from the United States was permanent; and he would

not have re-entered had he known of the severe penalties.          See Aplt’s App. at 17-

18 (Defendant’s Objections to Presentence Report). After hearing Mr. Ortega-

Rivera’s arguments, the district court refused to grant a downward departure.




       After examining the briefs and appellate record, this panel has determined
       1

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 cause is
therefore ordered submitted without oral argument.

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       [W]e have no jurisdiction to review a discretionary determination of a

district court not to depart from the sentencing guidelines.”        United States v.

Castillo , 140 F.3d 874, 887 (10th Cir. 1998). Mr. Ortega-Rivera concedes this

rule; however, he seeks to invoke the rare and limited exception that permits

plenary appellate review of a district court’s refusal to depart from the sentencing

guidelines where “it erroneously interpreted the Guidelines as depriving it of the

power to depart based on the proffered circumstances.”           United States v. Barrera-

Barron , 996 F.2d 244, 245 (10th Cir. 1993) (relying on         United States v. Lowden ,

900 F.2d 213, 217 (10th Cir. 1990));     see also Castillo , 140 F.3d at 887.

       Mr. Ortega-Rivera contends that a colorable reading of the district court

ruling discloses an erroneous legal conclusion that the proffered circumstances

cannot be considered in a decision to depart downward from the Guidelines. He

points to the following language of the district court in support of his argument:

       The fact that [reentry] happens all the time in California is not a basis for
       this Court to agree to a departure or consider a departure. The fact of the
       defendant’s family circumstances under the guidelines is not appropriate
       consideration for a departure. The fact of the nature of the offense, that is
       to say he came to Colorado apparently allegedly to recover a car, does not
       really affect the issue before the Court . . . .The fact that the defendant did
       not know of new penalties arising from the act of reentry again does not
       justify under the guidelines any departure.

Aplt. App. at 46-47 (Hr’g on Sentencing, Feb. 9, 1999).

       We have held that “unless the judge’s language       unambiguously states that

the judge does not believe he has authority to downward depart, we will not

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review his decision.”    United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir.

1994) (emphasis added). We simply refuse to review the denial of a downward

departure “[a]bsent such a misunderstanding on the sentencing judge’s part,

illegality, or an incorrect application of the guidelines.”   Id. (citing United States

v. Garcia , 919 F.2d 1478, 1481 (10th Cir. 1990)).

       The portions of the sentencing transcript relied on by Mr. Ortega-Rivera do

not establish that the district court judge unequivocally concluded as a matter of

law that he was without authority to consider the proffered circumstances for

departure under the Sentencing Guidelines. Moreover, in a portion of the

sentencing transcript that Mr. Ortega-Rivera does not cite in his brief, the court

stated:

       The defendant argues that the Court should depart with respect to the nature
       of this crime, and the background information under 5K2.0, and     which
       permits the Court to depart, as does the statute, where there exists an
       aggravating or mitigating circumstance of a kind or degree not adequately
       taken in to account by the Sentencing Commission     .

Aplt. App. at 46 (Hr’g on Sentencing, Feb. 9, 1999) (emphasis in original). Thus,

interpreted in context, the language of the district court indicates that it

understood its authority but chose not to exercise its discretion to depart under the

facts of this case.

       Accordingly, we DISMISS Mr. Ortega-Rivera’s appeal for lack of

jurisdiction.


                                              -4-
Entered for the Court,



Robert H. Henry
Circuit Judge




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