* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 7 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. JUAN ANTONIO ARRIETA-DURAN, also known as Sergio Lopez,

Defendant - Appellant. No. 02-6131 D.C. No. CR-01-105-L (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is court has determined unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Appellant, Juan Antonio Arrieta-Duran is a non-citi zen who was deported in 2000 after his felony conviction for attempted r obbery. On November 29,-2-

2001, Duran pleaded guilty to one count of illegall y re-entering the United States in violation of 8 U.S.C. § 1326(a). A presentence investigation report was prepared and, prior to sentencing, Duran filed a mo tion requesting a downward departure from the sentencing guidelines range. Th e district court denied the motion and sentenced Duran to the low end of the gu idelines range. Duran then brought this appeal. The only issue raised by Duran on appeal is whetherthe district court erred by failing to grant him a downward departure. “It is well settled that an appellate court lacks jurisdiction to review a sentencing cou rt’s refusal to depart from the Sentencing Guidelines when the sentencing court was aware that it had the authority to depart but declined to exercise that authority and grant the departure.” United States v. Fagan , 162 F.3d 1280, 1282 (10th Cir. 1998). Duran, however, argues that the district court refu sed to grant the downward departure because it believed it had no discretion to depart on the grounds he advanced. Under those circumstances, this court do es have jurisdiction to review the district court’s legal conclusion “that it does not have any authority to depart from the sentencing guideline range for the entire class of circumstances proffered by the defendant.” United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998). However, the “district court’s stateme nt that it lacks authority to-3-

grant the requested downward departure must be unambiguous.” United States v. Browning , 252 F.3d 1153, 1161 (10th Cir. 2001). We reject Duran’s argument. At the sentencing hear ing, the district court did not make an unambiguous legal determination that it lacked discretion to grant the downward departure requested by Duran. T o the contrary, the court considered Duran’s arguments but concluded that the factors upon which the motion for downward departure was based “were facto rs obviously taken into consideration by the Sentencing Commission when the y determined the guidelines.” The court further stated, “the Court denies the request for downward departure, as I feel it does not fall out of the heartland of cases.” It is clear that the district court’s refusal to grant Du ran a downward departure was based on its belief that it had the discretionary authority to grant the departure but that the circumstances asserted by Duran did no t justify the departure. Accordingly, this court lacks jurisdiction to revie w the district court’s denial of Duran’s departure motion and this appeal is dismissed

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge