United States v. Maldonado-Leon

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 10, 1999
• Docket: 98-4135
• Status: Unpublished

Opinion

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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

-2- proceed in forma pauperis. DISMISSED.

ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge

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