United States v. Ronquillo-Herrera

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 15 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-3221
(D.C. No. 00-CR-10008-01-JTM)
MARTIN RONQUILLO-HERRERA, (D. Kan.)
also known as MARTIN H.
RONQUILLO,
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.
The defendant was convicted, following the entry of a guilty plea, of
unlawful reentry of a deported alien. The government recommended a three point
*
This order and judgment is not binding precedent, except under the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.
reduction for acceptance of responsibility, see U.S.S.G. S 3E1.1, and moved for a
downward departure of two levels pursuant to U.S.S.G. § 5K1.1. At the
sentencing hearing, defense counsel argued for a more extensive departure. The
district followed the government’s recommendation and granted its motion for the
two level departure, sentencing the defendant to 60 months incarceration. We
dismiss for lack of jurisdiction.
The defendant appeals the district court’s denial of his request for a more
extensive downward departure. Defense counsel has filed an Anders Brief and a
motion to withdraw, suggesting that the court is without jurisdiction to review the
sentence. See Anders v. California, 386 U.S. 738 (1967). The defendant has not
filed a response to the brief and motion submitted by counsel, although he was
provided with a copy of counsel’s response and given an opportunity “to raise any
points he chooses.” Anders, 360 U.S. at 744.
It is well established that this court lacks jurisdiction to review the extent
of a downward departure. United States v. Fortier, 180 F.3d 1217, 1230 (10th
Cir. 1999). See also United States v. McHenry, 968 F.2d 1047, 1048-49 (10th
Cir. 1992) (holding that this court lacks jurisdiction to review the district court’s
decision to reduce only the defendant’s criminal history category and not the base
offense level as well in deciding to grant a downward departure). The defendant
does not point to any error of law or misapplication of the sentencing guidelines.
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See 18 U.S.C. § 3742(a)(1) & (2) (a defendant may appeal a sentence which “was
imposed in violation of the law,” or “as the result of an incorrect application of
the sentencing guidelines....”). Accordingly, we have no jurisdiction to entertain
this appeal.
Defense counsel’s motion to withdraw is granted and the appeal is
DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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