                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 22 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 01-1036
                                                    (D.C. No. 00-CR-59-M)
    MARCO ANTONIO                                         (D. Colo.)
    ARREOLA-NAJERA,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, PORFILIO , and ANDERSON , 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.




*
      This order and judgment is not binding precedent, except under the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 Marco Antonio Arreola-Najera pleaded guilty to two counts

of possession with intent to distribute 500 grams or more of methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and one count of conspiracy

to possess with intent to distribute 500 grams or more of methamphetamine, in

violation 21 U.S.C. § 846. He was sentenced, inter alia, to 262 months’

imprisonment. On appeal, he challenges only the district court’s determination of

his sentence. He argues that the court erred in not departing downward because

of the low purity of the drugs involved in his crimes, which he contends is

permitted by United States Sentencing Guidelines § 2D1.1, comment. (n.9). Mr.

Arreola-Najera acknowledges that this court generally lacks jurisdiction to review

a sentencing court’s denial of a downward departure, but contends his situation

falls within an exception to the general rule because the court misinterpreted the

guidelines as prohibiting a departure.   See, e.g. , United States v. Fortier , 180 F.3d

1217, 1231 (10th Cir. 1999).

       Note 9 to § 2D1.1 states that upward departures may be warranted for

trafficking drugs of unusually high purity, although methamphetamine is

specifically excluded. Mr. Arreola-Najera argues that the opposite consideration

should also apply even if the drug involved is methamphetamine; i.e., that a

downward departure may be warranted for drugs of particularly low purity, which

he contends was the case here. We note that the circuits are split on whether note


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9 permits a downward departure.    Compare United States v. Mendoza , 121 F.3d

510, 513, 515 (9th Cir. 1997) (holding that note 9 does not preclude downward

departure where defendant had no control over or knowledge of the high-level

purity of methamphetamine involved);       with United States v. Beltran , 122 F.3d

1156, 1159-60 (8th Cir. 1997) (holding that district court did not have authority to

depart downward under note 9 based on low purity of methamphetamine involved

in case); and United States v. Upthegrove , 974 F.2d 55, 56 (7th Cir. 1992)

(holding that note 9 did not authorize downward departure based on drug purity).

This circuit has not resolved the issue.

      As we have explained before,

      [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. . . .
      Equally clear in our circuit . . . is that we treat ambiguous statements
      by district judges as though the judge was aware of his or her legal
      authority to depart but chose instead, in an exercise of discretion,
      not to depart. . . . Accordingly, unless the judge’s language
      unambiguously states the judge does not believe he has authority
      to downward depart, we will not review his decision.

Fortier , 180 F.3d at 1231 (quotation omitted).

      Even assuming the type of departure Mr. Arreola-Najera seeks is legally

permissible, he would not be entitled to relief in this situation. After

Mr. Arreola-Najera presented this departure argument to the district court,

the court said, “Well, you know, with respect to whether it can be done, whether

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there’s jurisdiction to do it, I think there is.” R. Vol. 3 at 14. It is clear from

this and other statements regarding the departure argument that the court believed

it had authority to depart but chose not to do so. We therefore lack jurisdiction to

consider the court’s departure decision, and the appeal is DISMISSED.



                                                       Entered for the Court



                                                       Deanell Reece Tacha
                                                       Chief Judge




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