                        UNITED STATES COURT OF APPEALS
Filed 6/6/96
                               FOR THE TENTH CIRCUIT



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                         No. 95-3191
                                                         (D.C. No. 94-CR-10072)
    RONALD E. MERCER, aka Brian                                 (D. Kan.)
    Eugene Williams, Jr.,

                Defendant-Appellant.




                               ORDER AND JUDGMENT*



Before PORFILIO, JONES,** and TACHA, 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.




*
       This order and judgment is not binding precedent, except under the doctrines of law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.
**
        Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

       Defendant Ronald Mercer appeals from a sentence of one hundred fifty-one months.

We affirm.

       Defendant pled guilty to interference with commerce by threats or violence, in

violation of 18 U.S.C. § 1951. The presentence report calculated a base offense level of

twenty points, U.S.S.G. § 2B3.1, and added two points due to the threat of violence, U.S.S.G.

§ 2B3.1(b)(2)(F). Three points were subtracted for acceptance of responsibility, U.S.S.G.

§ 3E1.1(a), (b)(1) & (2), resulting in a total offense level of nineteen. Defendant was then

found to be a career offender in accordance with U.S.S.G. § 4B1.1 because he was at least

eighteen years old at the time of the offense, the offense was a felony crime of violence, and

defendant had at least two prior felony crime of violence convictions. His adjusted offense

level was calculated to be thirty-two. Three points were subtracted for acceptance of

responsibility, resulting in a total offense level of twenty-nine. Defendant was placed in

criminal history category VI. U.S.S.G. § 4B1.1. The resulting sentencing range was 151 to

188 months.

       Defendant moved for a downward departure from the career offender range, arguing

that there was an over representation of both the criminal history axis as well as the offense

level axis. He contended that burglary is the least serious of the crimes of violence listed

under U.S.S.G. § 4B1.2, which defines the crimes that qualify one as a career offender.


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       The district court stated that it had considered counsel’s motion, but was persuaded

that the presentence report’s response to it in paragraph 100 was entirely accurate. The court

also commented that it believed defendant was a career offender and that his history was not

over represented. The court noted defendant had been arrested within a few months of his

parole, indicating he had not learned anything. Nevertheless, the court sentenced defendant

to the lowest end of the guideline range.

       “A discretionary refusal to depart downward is not reviewable by this court unless it

appears from the record the sentencing court erroneously believed the Guidelines did not

permit a downward departure.” United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir.

1995). Defendant claims the district court harbored this erroneous belief, based on the fact

that the district court stated paragraph 100 of the presentence report was entirely accurate.

This paragraph provides that defendant is a career offender under U.S.S.G. § 4B1.1, that 28

U.S.C. § 994(h) mandates the Sentencing Commission to assure that career offenders are

sentenced “at or near the maximum term authorized,” and that, because of this mandate, the

Sentencing Commission took into account defendant’s situation by implementing U.S.S.G.

§ 4B1.1. Paragraph 100 concluded that a downward departure is not warranted.

       We disagree that the district court’s endorsement of this paragraph establishes it did

not believe it could depart downward. Even defendant concedes that the record was not “a

model of clarity on whether the court’s consideration of Mercer’s motion was equivalent to

a finding that it could depart, but simply chose not to depart.” Appellant’s Br. at 15. We


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conclude the district court’s remarks were, at most, ambiguous as to whether it thought it had

authority to depart downward. This conclusion is fatal to defendant’s claim, however, as the

rule in this circuit is that “unless the judge’s language unambiguously states that the judge

does not believe he has authority to downward depart, we will not review his decision.”

United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir. 1994).

       The judgment of the United States District Court for the District of Kansas is

AFFIRMED.

                                                         Entered for the Court



                                                         Nathaniel R. Jones
                                                         Senior Circuit Judge




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