United States v. Jesus Enrique Barrera-Barron, 996 F.2d 244 (10th Cir. 1993). · Go Syfert
United States v. Jesus Enrique Barrera-Barron, 996 F.2d 244 (10th Cir. 1993). Cases Citing This Book View Copy Cite
“the district court's use of the phrase 'not going to' indicates that it was aware it had the ability to exercise its discretion but chose not to.”
78 citation events (13 in the last 25 years) across 3 distinct courts.
Strongest positive: United States v. Couch (ca10, 2018-12-20)
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discussed Cited as authority (verbatim quote) United States v. Couch
10th Cir. · 2018 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
the district court's use of the phrase 'not going to' indicates that it was aware it had the ability to exercise its discretion but chose not to.
discussed Cited as authority (rule) United States v. Sanchez
6th Cir. · 2003 · confidence medium
We also agree with the observation recently made by the Tenth Circuit that district judges are now quite familiar with the guidelines, and an appellate court should be reluctant to “treat as ambiguous” a ruling which does not affirmatively state that the judge knew he could depart downward but failed to do so____ Rather, it should be assumed “that the Court, in the exercise of its discretion found downward departure unwarranted.” Id. at 145 , citing United States v. Barrera-Barron, 996 F.2d 244, 245-46 (10th Cir.), cert. denied, 510 U.S. 937 , 114 S.Ct. 358 , 126 L.Ed.2d 321 (1993); se…
discussed Cited as authority (rule) United States v. Martin
6th Cir. · 2003 · confidence medium
And I simply can’t overlook the seriousness of these crimes.” In sum, the record discloses that the district court “in the exercise of its discretion. found downward departure unwarranted.” United States v. Byrd, 53 F.3d 144, 145 (6th Cir.1995) (quoting United States v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir.1993)).
discussed Cited as authority (rule) United States v. Adams
6th Cir. · 2002 · confidence medium
This court, in United States v. Byrd, 53 F.3d 144 (6th Cir.1995), adopted the view of several other circuits that “there is no duty on the trial judge to state affirmatively that he knows he possesses the power to make a downward departure, but declines to do so.... [A]n appellate court should be reluctant to ‘treat as ambiguous’ a ruling which does not affirmatively state that the judge knew he could depart downward but failed to do so.” Id. at 145 (quoting United States v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir.1993)).
discussed Cited as authority (rule) United States v. Martinez
10th Cir. · 2002 · confidence medium
Downward Departure Mr. Martinez filed a motion for a downward departure pursuant to USSG 5K2.13, in part based upon his diminished capacity. 3 “We have jurisdiction to review a district court’s refusal to depart downward only when ‘the district court refused to depart because it erroneously interpreted the USSG as depriving it of the power to depart based on the proffered circumstances.’ ” United States v. Remen, 73 F.3d 1061, 1063 (10th Cir.1996) (quoting United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.1993)).
discussed Cited as authority (rule) United States v. Gulley
6th Cir. · 2002 · confidence medium
And, the reviewing court “should be reluctant to ‘treat as ambiguous’ a ruling which does not affirmatively state that the judge knew he could depart downward but failed to do so,” but should instead assume that the district court, “ ‘in the exercise of its discretion, found downward departure unwarranted.’ ” See id. (quoting United States v. Barrera-Baron, 996 F.2d 244, 245-46 (10th Cir. 1993)).
discussed Cited as authority (rule) United States v. Kovac
10th Cir. · 2001 · confidence medium
Although we will review discretionary refusals to depart where it appears from the record that “the district court refused ... because it erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances,” United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.1993), such review is appropriate only where “the judge’s language unambiguously states that the judge does not believe he has authority to downward depart.” United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.1994).
discussed Cited as authority (rule) United States v. Poole
10th Cir. · 2001 · confidence medium
It is well-settled that this court has jurisdiction to review a “refusal to depart downward only when ‘the district court refused to depart because it erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances.’” United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir.1996) (quoting United States v. Bairera-Barron, 996 F.2d 244, 245 (10th Cir.1993)). “ ‘[Ujnless the judge’s language unambiguously states that he does not believe he has authority to downward depart, we will not review his decision.’ ” Id. (quoting United Stat…
discussed Cited as authority (rule) United States v. Veren
10th Cir. · 2001 · confidence medium
Concerning the downward departure issue, “[w]e have jurisdiction to review a district court’s refusal to depart downward only when ‘the district court refused to depart because it erroneously interpreted the [Sentencing] Guidelines as depriving it of the power to depart based on the proffered circumstances.’” United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir.1996) (quoting United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir. 1993)).
discussed Cited as authority (rule) United States v. Helbach
10th Cir. · 2001 · confidence medium
“We have jurisdiction to review a district court’s refusal to depart downward only when ‘the district court refused to depart because it erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances.’ ” United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir.1996)(quoting United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, 510 U.S. 937 , 114 S.Ct. 358 , 126 L.Ed.2d 321 (1993)).
discussed Cited as authority (rule) United States v. Luna-Sanchez
10th Cir. · 2000 · confidence medium
See United States v. Guidry, 199 F.3d 1150, 1161 (10th Cir. 1999); see also United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998) (“[The court] of appeals cannot exercise jurisdiction to review a sentencing court’s refusal to depart from the sentencing guidelines except in the very rare circumstance that the district court states that it does not have the authority to depart from the sentencing guidelines range for the entire class of circumstances proffered by the defendant.”); United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir. 1996) (“We have jurisdiction to review a distr…
discussed Cited as authority (rule) United States v. Luguin-Rodruguez
10th Cir. · 2000 · confidence medium
See United States v. Guidry, 199 F.3d 1150, 1161 (10th Cir. 1999); see also United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998) (“[The court] of appeals cannot exercise jurisdiction to review a sentencing court’s refusal to depart from the sentencing guidelines except in the very rare circumstance that the district court states that it does not have the authority to depart from the sentencing guidelines range for the entire class of circumstances proffered by the defendant.”); United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir. 1996) (“We have jurisdiction to review a distr…
discussed Cited as authority (rule) United States v. Brown
10th Cir. · 2000 · signal: cf. · confidence medium
Here, the record does not demonstrate such; rather, the record indicates that the district court believed that it had the authority to depart but chose not to do so because this was not a case “outside of the heartland.” Rec. vol. 4, doc. 1, at 47 (sentencing hearing transcript); cf. United States v. Barrera-Barron , 996 F.2d 244, 245-46 (10th Cir. 1993) (drawing a distinction between a court’s “dissatisfaction with the reasons proffered to support a downward departure” and a court’s “belief that the proffered reasons do not as a legal matter permit the court the discretion to de…
discussed Cited as authority (rule) United States v. John R. Prince (98-6361), Tony White (98-6362)
6th Cir. · 2000 · confidence medium
When reviewing a ruling which fails to affirmatively state that the judge knew he could depart downward, “it should be assumed ‘that the court, in the exercise of its discretion, found downward departure unwarranted.’ ” Id. (quoting United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert, denied, 510 U.S. 937 , 114 S.Ct. 358 , 126 L.Ed.2d 321 (1993)).
discussed Cited as authority (rule) United States v. White
6th Cir. · 2000 · confidence medium
On unwarranted.’” Id. (quoting United States v. Barrera-Barron, appeal of his conviction, Leahy argued that GWR did not 996 F.2d 244, 245 (10th Cir.), cert. denied, 510 U.S. 937 , 114 possess the funds wired from the VA until they were S.Ct. 358, 126 L.Ed.2d 321 (1993)). deposited in GWR’s account.
discussed Cited as authority (rule) United States v. David J. Farrow (2×)
6th Cir. · 2000 · confidence medium
Byrd, 53 F.3d at 145 (quoting United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir. 1993)). 88 In this case, the record affirmatively reflects the District Court's knowledge of its authority to grant the departure sought by Farrow.
discussed Cited as authority (rule) United States v. Benjamin Y. Owusu (98-3356), Larry Latham (98-3847), and Anthony Latham (98-3850)
6th Cir. · 2000 · confidence medium
Moreover, “an appellate court should be reluctant to ‘treat as ambiguous’ a ruling which does not affirmatively state that the judge knew he could depart downward but failed to do so.” Id. (quoting United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, 510 U.S. 937 , 114 S.Ct. 358 , 126 L.Ed.2d 321 (1993)).
discussed Cited as authority (rule) United States v. Owusu
6th Cir. · 2000 · confidence medium
Sonyini McGraw testified that Larry depart downward but failed to do so.” Id. (quoting United supplied drugs to Anthony, who then distributed them to States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert.
discussed Cited as authority (rule) United States v. Ortega-Rivera
10th Cir. · 1999 · confidence medium
Mr. Ortega-Rivera concedes this rule; however, he seeks to invoke the rare and limited exception that permits plenary appellate review of a district court’s refusal to depart from the sentencing guidelines where “it erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances.” United States v. Barrera- Barron , 996 F.2d 244, 245 (10th Cir. 1993) (relying on United States v. Lowden , 900 F.2d 213, 217 (10th Cir. 1990)); see also Castillo , 140 F.3d at 887 .
discussed Cited as authority (rule) United States v. Fortier
10th Cir. · 1999 · confidence medium
See, e.g., Castillo, 140 F.3d at 887 ; United States v. Coddington, 118 F.3d 1439, 1441 (10th Cir.1997); United States v. Segien, 114 F.3d 1014, 1024 (10th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 1310 , 140 L.Ed.2d 474 (1998); Belt, 89 F.3d at 714 ; United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir.1996); Nelson, 54 F.3d at 1544 ; United States v. Stewart, 37 F.3d 1449, 1450 (10th Cir.1994); Rodriguez, 30 F.3d at 1319 ; United States v. Barrera-Barron, 996 F.2d 244, 245-46 (10th Cir.1993).
discussed Cited as authority (rule) United States v. Vinaithong
10th Cir. · 1999 · confidence medium
We think that “the district courts have become more experienced in applying the Guidelines and more familiar with their power to make discretionary departure decisions under the Guidelines.” United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir. 1994) (quoting United States v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir. 1993)).
discussed Cited as authority (rule) United States v. Peggyarnell McNeil
10th Cir. · 1998 · confidence medium
She further argues that the court's refusal was based upon a legal error or misapplication of the guidelines, i.e., the failure to maintain the distinction between offense level adjustments and criminal history departures. 16 It is well settled that we lack jurisdiction to review a district court's refusal to depart from the sentencing guidelines, unless the court "erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances." United States v. Castillo, 140 F.3d 874, 887 (10th Cir.1998) (quoting United States v. Barrera-Barron, 996 F.2d 244…
discussed Cited as authority (rule) United States v. McNeil
10th Cir. · 1998 · confidence medium
It is well settled that we lack jurisdiction to review a district court’s refusal to depart from the sentencing guidelines, unless the court “erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances.” United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998) (quoting United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.1993)).
discussed Cited as authority (rule) United States v. Nunez-Duran
10th Cir. · 1998 · confidence medium
See, e.g. , United States v. Castillo , 140 F.3d 874, 888 (10th Cir. 3 1998); United States v. Banta , 127 F.3d 982 , 983 n.1 (10th Cir. 1997); United States v. Belt , 89 F.3d 710, 714 (10th Cir. 1996); United States v. Barrera- Barron , 996 F.2d 244, 245 (10th Cir. 1993).
discussed Cited as authority (rule) United States v. Oscar Gustavo Nunez-Duran, Also Known as Oscar Gustavo Duran-Nunez, Also Known as Oscar Duran
10th Cir. · 1998 · confidence medium
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); United States v. Belt, 89 F.3d 710, 714 (10th Cir.1996); United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.1993). 7 No duty compels the district court to consider separately the government's substantial assistance motion and any downward departure motion made by defendant.
discussed Cited as authority (rule) United States v. Castillo (2×)
10th Cir. · 1998 · confidence medium
United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir. 1993) (emphasis added) (relying on United States v. Lowden, 900 F.2d 213, 217 (10th Cir. 1990).
discussed Cited as authority (rule) United States v. Monica Shevette Carter
10th Cir. · 1997 · confidence medium
Furthermore, because " 'the district courts have become more experienced in applying the Guidelines and more familiar with their power to make discretionary departure decisions under the Guidelines,' " we presume the court was aware of its authority "unless the judge's language unambiguously states that the judge does not believe he has authority to downward depart." United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.1994) (quoting United States v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir.1993)); see also Nelson, 54 F.3d at 1544 ("If the record is ambiguous concerning the district cou…
discussed Cited as authority (rule) United States v. Carter
10th Cir. · 1997 · confidence medium
Furthermore, because “‘the district courts have become more experienced in applying the Guidelines and more familiar with their power to make discretionary departure decisions under the Guidelines,’” we presume the court was aware of its authority “unless the judge’s language unambiguously states that the judge does not believe he has authority to downward depart.” United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir. 1994) (quoting United States v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir. 1993)); see also Nelson, 54 F.3d at 1544 (“If the record is ambiguous concerning …
discussed Cited as authority (rule) United States v. Rodriguez
10th Cir. · 1997 · confidence medium
He further asserts that it is unclear from the district court’s ruling whether the court recognized it had authority to depart pursuant to the “family ties and responsibilities” guideline. -6- This court has jurisdiction to review a district court’s refusal to depart downward only when “the district court refused to depart because it erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances.” United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir. 1993).
discussed Cited as authority (rule) United States v. Miguel Medina-Rodriguez
10th Cir. · 1997 · confidence medium
He further asserts that it is unclear from the district court's ruling whether the court recognized it had authority to depart pursuant to the "family ties and responsibilities" guideline. 20 This court has jurisdiction to review a district court's refusal to depart downward only when "the district court refused to depart because it erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances." United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.1993).
discussed Cited as authority (rule) United States v. Coddington
10th Cir. · 1997 · confidence medium
“Absent 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. Belt, 89 F.3d 710, 714 (10th Cir.1996) (citing 18 U.S.C. § 3742 (a); United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.1994); United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.1993)).
discussed Cited as authority (rule) United States v. Elizabeth Helmling
10th Cir. · 1997 · confidence medium
Furthermore, because " 'the district courts have become more experienced in applying the Guidelines and more familiar with their power to make discretionary departure decisions under the Guidelines,' " this court will only review a refusal to depart downward where the district judge's "language unambiguously states that the judge does not believe he has authority to downward depart." United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.1994) (quoting United State v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir.), cert. denied, 114 S.Ct. (1993)).
cited Cited as authority (rule) United States v. Helmling
10th Cir. · 1997 · confidence medium
U.S.S.G. § 5K2.13 (1995). -2- 1994) (quoting United State v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir.), cert. denied, 114 S. Ct. (1993)).
discussed Cited as authority (rule) United States v. Cowan
10th Cir. · 1996 · confidence medium
However, if the district court interpreted the Guidelines as authorizing departure, but nonetheless chose not to depart, then we would have no jurisdiction to review this discretionary decision." 7 United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir.1996) (quoting United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, 510 U.S. 937 (1993). 8 In this case, after hearing the arguments of counsel, the district court stated: "I adopt the recommendation of the probation department.
cited Cited as authority (rule) United States v. Canyon
10th Cir. · 1996 · confidence medium
United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, 510 U.S. 937 (1993).
discussed Cited as authority (rule) United States v. Belt
10th Cir. · 1996 · confidence medium
Absent 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. 18 U.S.C. § 3742 (a); United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.1994); United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, - U.S. -, 114 S.Ct. 358 , 126 L.Ed.2d 321 (1993).
discussed Cited as authority (rule) United States v. Edmund Steven Kulik, Jr.
6th Cir. · 1996 · confidence medium
Further, we assume that district judges are now familiar with the Guidelines and, therefore, we are "reluctant to 'treat as ambiguous' a ruling which does not affirmatively state that the judge knew he could depart downward but failed to do so." Id. (quoting United States v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir.), cert. denied, 114 S.Ct. 358 (1993)). 10 We agree with defendant, however, that this case falls within an exception to the no appeal rule because the District Court was unaware of its discretion to depart downward.
discussed Cited as authority (rule) United States v. James Patrick Rowen
10th Cir. · 1996 · confidence medium
We have jurisdiction to review a district court’s refusal to depart downward only when “the district court refused to depart because it erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances.... ” United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, — U.S. -, 114 S.Ct. 358 , 126 L.Ed.2d 321 (1993).
cited Cited as authority (rule) United States v. Elisar Olivo
10th Cir. · 1995 · confidence medium
United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, 114 S.Ct. 358 (1993).
discussed Cited as authority (rule) United States v. Alexander Joseph Mihaly
10th Cir. · 1995 · confidence medium
This is so because district courts have become “ ‘more experienced in applying the Guidelines and more familiar with their power to make discretionary departure decisions under the Guidelines.’ ” United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.1994) (quoting United States v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir.), cert. denied, — U.S. -, 114 S.Ct. 358 , 126 L.Ed.2d 321 (1993)).
cited Cited as authority (rule) United States v. Douglass Nelson
10th Cir. · 1995 · confidence medium
United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, — U.S. —, 114 S.Ct. 358 , 126 L.Ed.2d 321 (1993).
cited Cited as authority (rule) United States v. Jeffrey B. Garvin
10th Cir. · 1995 · confidence medium
U.S. v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir.), cert. denied, 114 S.Ct. 358 (1993).
cited Cited as authority (rule) United States v. Michael Alexander Byrd
6th Cir. · 1995 · confidence medium
United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, — U.S. -, 114 S.Ct. 358 , 126 L.Ed.2d 321 (1993).
cited Cited as authority (rule) United States v. John L. Saiz
10th Cir. · 1995 · confidence medium
United States v. Haggerty, 4 F.3d 901, 902-03 (10th Cir.1993); United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, 114 S.Ct. 358 (1993).
cited Cited as authority (rule) United States v. George Clinton Helmstetter
10th Cir. · 1994 · confidence medium
United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, 114 S.Ct. 358 (1993).
discussed Cited as authority (rule) United States v. Robert D. Stewart
10th Cir. · 1994 · confidence medium
In a recent case, we observed, “the district courts have become more experienced in applying the Guidelines and more familiar with their power to make discretionary departure decisions under the Guidelines.” United States v. Barrera-Barron, 996 F.2d 244, 246 (10th Cir.), cert. denied, - U.S. -, 114 S.Ct. 358 , 126 L.Ed.2d 321 (1993).
discussed Cited as authority (rule) United States v. William Dwaine Connelley, AKA William Duwayne Connely
10th Cir. · 1994 · confidence medium
However, if the district court interpreted the Guidelines as authorizing departure, but nonetheless chose not to depart, then we would have no jurisdiction to review this discretionary decision." 8 United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, 114 S.Ct. 358 (1993).
cited Cited as authority (rule) United States v. Johnny L. Sanders
10th Cir. · 1994 · confidence medium
United States v. Enrique Barerra-Barron, 996 F.2d 244, 245 (10th Cir.1993).
discussed Cited as authority (rule) United States v. Sandra Clark Martin Braggs
10th Cir. · 1994 · confidence medium
"If the district court refused to depart because it erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances, then our review would be plenary." United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.1993). 15 Where, however, the sentencing court does in fact elect to depart form the Guidelines, we review such departure under a three-step analysis: 16 First, we determine whether the circumstances cited by the district court justify a departure from the [G]uidelines....
discussed Cited as authority (rule) United States v. Julio Escobar
10th Cir. · 1994 · confidence medium
United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.1993). 11 We AFFIRM the district court's decision regarding the adjustments to Mr. Escobar's sentence level and DISMISS the appeal with respect to the court's discretionary refusal to grant a downward departure. 1 This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir. R. 36.3 2 After reviewing the record and researching the applicable law as require…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Jesus Enrique BARRERA-BARRON, Defendant-Appellant
92-2243.
Court of Appeals for the Tenth Circuit.
Jun 21, 1993.
996 F.2d 244
Don J. Svet, U.S. Atty., and Charles L. Barth, Asst. U.S. Atty., Las Cruces, NM, for plaintiff/appellee., Tova Indritz, Federal Public Defender, and Barbara A. Mandel, Asst. Federal Public Defender, Las Cruces, NM, for defendant/appellant.
Seymour, Anderson, Ebel.
Cited by 62 opinions  |  Published
EBEL, Circuit Judge. *

Jesus Enrique Barrera-Barron [“Barrera”], the defendant-appellant, appeals from the district court’s refusal to grant him a downward departure under the United States Sentencing Guidelines. Because the district court’s decision to deny the downward departure was a discretionary decision, we lack jurisdiction to review it and therefore dismiss the appeal.

Border Patrol agents arrested Barrera and his co-defendant, Luis Fernando Aguirre-Aguilar [“Aguirre”], at a border checkpoint after finding marijuana in a tractor trailer that Barrera was driving. Aguirre was a passenger in the truck. Both men were indicted on April 22, 1992, for possession with intent to distribute more than fifty kilograms of marijuana and aiding and abetting in violation of 21 U.S.C. §§ 841(a)(1) and 18 U.S.C. § 2.

On July 14,1992, Barrera pleaded guilty to the charges alleged in the indictment. In the[*245] Memorandum of Understanding Regarding Guilty Plea, the government agreed to dismiss the charges against Aguirre after the imposition of a sentence on Barrera.

Barrera filed objections to the Presentenee Report on October 8, 1992, and requested that the court depart downward. In particular, Barrera asserted that he was entitled to a downward departure because he had “aided the functioning of the administration of justice” by pleading guilty, giving up his motion to suppress, and helping to free an innocent person, his co-defendant Aguirre.

At the sentencing hearing on October 29, 1992, the district court granted Barrera a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. However, the district court denied Barrera’s request for a downward departure at the sentencing hearing held on October 29, 1992, stating that “I am not going to find that there are grounds in this case for a downward departure. Yol. II at 2. Finding that Barrera had an offense level of 20 and a criminal history category of II, the district court found that the guideline imprisonment range was 37 to 46 months. The district court then sentenced Barrera to 42 months imprisonment.

Barrera appeals, contending that the district court erroneously held that it had no discretion to depart downward on the grounds proffered by Barrera. In the alternative, he contends that remand for clarification of the district court’s ruling is proper, because the ruling was ambiguous as to whether the district court held that it had no discretion to depart on the basis of the proffered reasons or whether the court recognized that some or all of the factors permitted a departure, but nonetheless chose not to exercise its discretion to depart.

The basis for the denial of the departure has important consequences for our ability to review the refusal to depart. We have jurisdiction to review a sentence imposed under the sentencing guidelines only in limited circumstances. See 18 U.S.C. § 3742(a). If the district court refused to depart because it erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances, then our review would be plenary. United States v. Lowden, 900 F.2d 213, 217 (10th Cir.), opinion after remand, 905 F.2d 1448, cert. denied, 498 U.S. 876, 111 S.Ct. 206, 112 L.Ed.2d 166 (1990). However, if the district court interpreted the Guidelines as authorizing departure, but nonetheless chose not to depart, then wé would have no jurisdiction to review this discretionary decision. United States v. Fox, 930 F.2d 820, 824 (10th Cir.), opinion after remand, 943 F.2d 1218, cert. denied, — U.S. -, 112 S.Ct. 218, 116 L.Ed.2d 176 (1991); United States v. Soto, 918 F.2d 882, 883 (10th Cir.1990) (citations omitted).

We hold that the district court’s ruling that Barrera was not entitled to a downward departure was a discretionary decision that we lack jurisdiction to review. Barrera contends that the language used by the district court to deny the downward departure was similar to that used by the district court in Lowden, where we held that the following ruling by the district court was ambiguous:

I have considered at some length the motion to depart from the sentencing guidelines and feel that it does not state the grounds on which I could depart from the guidelines and I will therefore deny the motion.

Lowden, 900 F.2d at 217. Although the district court in the instant ease initially used language similar to that in Lowden, the court subsequently clarified the discretionary basis of its ruling after an inquiry by the defendant’s counsel:

THE COURT: ... I don’t feel that — I cannot find that there is [sic] grounds for a downward departure in this case. Anything further?
MR. LYMAN: Yes sir; yes, Your Honor, one final thing. By not finding grounds for a downward departure, does this mean that the Court does not believe that there is a legal basis for—
THE COURT: I am not going to find that there are grounds in this ease for a downward departure.

Vol. II at 2. The district court’s use of the phrase “not going to” indicates that it was aware it had the ability to exercise its discretion but chose not to. Likewise, the court’s use of the verb “find” indicates that the basis for the court’s decision is its dissatisfaction with the reasons proffered to support a[*246] downward departure, rather than a belief that the proffered reasons do not as a legal matter permit the court the discretion to depart.

Moreover, since Lowden and Fox, the district courts have become more experienced in applying the Guidelines and more familiar with their power to make discretionary departure decisions under the Guidelines. We therefore are less inclined to treat as ambiguous a ruling like that in the instant case and more inclined to treat it as a finding that the court, in the exercise of its discretion, found downward departure unwarranted.

For the foregoing reasons, we DISMISS Barrera’s appeal for a lack of jurisdiction.

*

The parties to this appeal have indicated that oral argument is not desired. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.-1.9. Therefore, the case is ordered submitted without oral argument.