United States v. Chavira-Montes

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 25 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-3384
(D.C. No. 00-CR-10057-01-MLB)
JOSE A. CHAVIRA-MONTES, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY , Senior
Circuit Judge.
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.
*
This order and judgment is not binding precedent, except under the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.
The defendant appeals the district court’s denial of his request for a more
extensive downward departure in his sentence. We dismiss for lack of
jurisdiction.
The defendant was convicted, following the entry of a guilty plea, of
possession with intent to distribute cocaine in violation of 21 U.S.C. § 841. The
government moved for a downward departure based on the defendant’s substantial
assistance. See U.S.S.G. § 5K1.1. In its written motion, the government did not
recommend a specific degree of departure but merely requested that the sentence
be “reduced to a level that is deemed appropriate by the Court.” At the
sentencing hearing, defense counsel argued for a sentence within 56 and 70
months. The government in response to inquiry from the court suggested a
sentence of between 84 and 90 months. The court sentenced the defendant to 80
months.
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 brief and given an opportunity “to raise any points he
chooses.” Anders, 360 U.S. at 744.
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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.
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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