United States v. Aguirre-Cordero , 50 F. App'x 396 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
NOV 6 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-1165
v. D.C. No. 01-CR-433-D
(D. Colorado)
CRUZ AGUIRRE-CORDERO,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, LUCERO and HARTZ, Circuit Judges.
Cruz Aguirre-Cordero, an alien, previously pled guilty to possession of less
than fifty kilograms of marijuana with intent to distribute and was sentenced to
ten months’ imprisonment and two years’ supervised release. On July 5, 2000,
Aguirre-Cordero was deported. On March 28, 2001, authorities found him in the
United States when he was arrested in Colorado for a traffic violation. Aguirre-
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
Cordero was indicted on April 25, 2001, for illegally reentering the United States
after having been convicted of an aggravated felony, in violation of 8 U.S.C. §
1326(a) and (b)(2). He later pled guilty to this offense and was sentenced to
thirty-seven months’ imprisonment. Aguirre-Cordero also pled guilty to three
counts of violating the terms and conditions of his supervised release: (1)
unlawful re-entry into the United States after having been convicted of an
aggravated felony and deported; (2) driving while ability impaired; and (3)
reentering the United States without prior approval from the Attorney General, a
special condition of his supervised release. On March 28, 2002, the district court
sentenced Aguirre-Cordero to four months’ imprisonment, to be served
consecutive to the thirty-seven-month prison sentence imposed for the § 1326
illegal re-entry conviction, thirty-two months’ supervised release, and a $100
special assessment. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and
affirm.
On appeal, the federal public defender appointed to represent Aguirre-
Cordero filed an Anders brief and moved to withdraw as counsel. See Anders v.
California, 386 U.S. 738, 744 (permitting counsel who considers an appeal to be
wholly frivolous to advise the court of that fact, request permission to withdraw
from the case, and submit a brief referring to portions of the record that arguably
support the appeal). In the Anders brief, counsel stated that the district court did
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not err in calculating Aguirre-Cordero’s sentence pursuant to the Sentencing
Guidelines. Aguirre-Cordero was afforded an opportunity to respond on the
merits, but declined to do so, only filing a motion asking us to appoint counsel for
his appeal.
After conducting “a full examination of all the proceedings” as required by
Anders, id., we conclude that the appeal is without merit. We have carefully
reviewed the district court’s sentencing calculations and find no error. Because
Aguirre-Cordero had a criminal history category of one, and the most serious
violation of his supervised release entailed reentering the United States after
committing an aggravated felony and being deported, a Grade B offense, his
correct sentencing range was from four to ten months. See U.S.S.G. §§ 7B1.1
(defining grades of supervised release violations) and 7B1.4(a) (term of
imprisonment for violations of supervised release). He received a four-month
sentence, the statutory minimum. This four-month sentence for violation of
supervised release was imposed consecutively to the thirty-seven-month sentence
imposed for his illegal reentry conviction. Section 7B1.3(f) of the Sentencing
Guidleines states:
[A]ny term of imprisonment imposed upon the revocation of
probation or supervised release shall be ordered to be served
consecutively to any sentence of imprisonment that the defendant is
serving, whether or not the sentence of imprisonment being served
resulted from the conduct that is the basis of the revocation of
probation or supervised release.
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U.S.S.G. § 7B1.3(f) (emphasis added).
Prior to sentencing, Aguirre-Cordero’s counsel moved for a downward
departure, citing extraordinary family circumstances that allegedly warranted
expedited deportation. As a general matter, family responsibilities, including in
Aguirre-Cordero’s case the need to provide financial support for sick family
members, are a discouraged basis for downward departure, but the district court
has discretion to grant such departure. See United States v. Gauvin, 173 F.3d
798, 807; U.S.S.G. § 5H1.6. “[A] district court may depart based on family
circumstances ‘only if the factor is present to an exceptional degree or in some
other way makes the case different from the ordinary case where the factor is
present.’” Gauvin, 173 F.3d at 807 (quoting Koon v. United States, 518 U.S. 81,
96 (1996)). In the present case, the district court denied Aguirre-Cordero’s
request for downward departure. We lack jurisdiction to review a district court’s
failure to depart downward absent the court’s clear misunderstanding of its
discretion to depart. United States v. Coddington, 118 F.3d 1439, 1441 (10th Cir.
1997). Because the record shows that the district court understood its discretion,
but chose not to exercise it, we have no jurisdiction to consider the propriety of
its decision.
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In sum, Aguirre-Cordero’s sentence falls within the applicable guideline
range. We see no issues in this case that might properly be the subject of an
appeal. Accordingly, counsel’s motion to withdraw is GRANTED, defendant’s
motion to appoint counsel is DENIED and we AFFIRM.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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