United States v. Holtsman ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 8 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-5053
(D.C. No. 99-CR-127-C)
DARIAN LEE HOLTSMAN, (N.D. Okla.)
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.
Defendant Holtsman pleaded guilty to one count of bank robbery in
violation of 18 U.S.C. § 2113(a) and (d). The district court, after denying his
motion for downward departure, found that the defendant had a total offense
*
This order and judgment is not binding precedent, except under the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.
level of twenty-seven and a criminal history category of I, giving a sentencing
range of seventy to eighty-seven months. The defendant was sentenced to eighty
seven months imprisonment followed by five year of supervised release, and
ordered to pay $2,911.80 in restitution.
Counsel for the defendant has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and has requested leave to withdraw. Counsel’s
brief acknowledges that “[t]here are no facts to support an argument by Mr.
Holtsman that the district court failed to depart because it erroneously interpreted
the guidelines as depriving it of the power to depart based on the proffered
circumstances.” Id. at 5.
Upon the filing of counsel’s Anders brief, the defendant was given an
opportunity to respond. He failed to do so.
It is well settled that "[a]bsent the trial court's clear misunderstanding of its
discretion to depart, or its imposition of a sentence which violates the law or
incorrectly applies the guidelines, we have no jurisdiction to review a refusal to
depart." United States v. Coddington, 118 F.3d 1439, 1441 (10th Cir. 1997)
(citations omitted). After a thorough review of the record and counsel’s brief,
the court finds that the district court properly applied the guidelines and
understood its authority when it denied the defendant’s motion for a downward
departure. Therefore, this court lacks jurisdiction to review the discretionary
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decision of the district court not to depart from the guidelines.
Accordingly, the appeal is DISMISSED. The motion by counsel for the
defendant to withdraw is GRANTED. The mandate will issue forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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