United States v. Maldonado-Leon

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 10 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 98-4135
(D. Ct. No. 98-CR-169-W)
JESUS MALDONADO-LEON, (D. Utah)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Defendant Maldonado-Leon appeals an order of the district court
sentencing him to 77 months pursuant to a plea of guilty to a one-count
indictment charging reentry of a deported alien in violation of 8 U.S.C. § 1326. It
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
is undisputed that defendant has prior felony convictions. The district court
sentenced defendant to, among other provisions, 77 months imprisonment, three
years supervised release, and a special assessment fee of $100. Defendant argues
on appeal that his sentence of 77 months in federal prison is too long for the
illegal actions to which he pled guilty.
Defendant’s counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967). Defendant’s counsel has also filed a motion to withdraw stating
that she has thoroughly reviewed the case and can find no issues to appeal.
Counsel has informed the appellant of the filing of the Anders brief and further
notified him that he is entitled to proceed pro se. Counsel further alleges that the
defendant has failed to keep in touch with her. We grant the motion to withdraw.
The only allegation on appeal is that the sentence is too long for the offense
to which defendant pled guilty. Because the district court sentenced defendant at
the low end of the guideline range for the offense to which he pled guilty, we
construe the issue on appeal as whether defendant was entitled to a downward
departure from the sentencing guidelines. We have no jurisdiction to review a
district court’s discretionary refusal to depart downward from a sentence within
the guideline range. See, e.g., United States v. Castillo , 140 F.3d 874, 888 (10th
Cir.1998); United States v. Banta , 127 F.3d 982, 983 n. 1 (10th Cir.1997). We
dismiss the appeal for lack of jurisdiction. We deny defendant’s motion to
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proceed in forma pauperis. DISMISSED.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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