* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### JUN 11 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 98-4137
v. (D.C. No. 97-CR-435-K) ARTURO ESPINOZA-RAMIREZ, (D. Utah) Defendant - Appellant.

ORDER AND JUDGMENT *
Before TACHA , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially assist 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 ora l argument. Defendant-Appellant Arturo Espinoza-Ramirez appeals his sentence, objecting to the district court’s refusal to departdownward under the United States Sentencing Guidelines. At issue is whether we have jurisdiction to review-2-

his appeal. Defendant pleaded guilty to aggravated reentry into the United States as a deported alien in violation of 8 U.S.C. § 1326. Be fore sentencing, Defendant filed a motion for a downward departure under U.S.S .G. § 5K2.0, arguing that his family ties, cultural assimilation, and need for me dical treatment in this country combined to remove his case from the heartland of i llegal reentry cases and warranted a downward departure. The district courtdenied the motion and sentenced Defendant at the low end of the guideline range to seventy-seven months’ imprisonment and three years’ supervised re lease. Because Defendant’s counsel believes that this court has no jurisdiction to review a trial court’s refusal to depart downward f rom the sentencing guidelines, he filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), in which he set forth Defendant’s argument and moved to with draw from representing Defendant. Defendant has not filed a separate brie f or statement of the issues on appeal. The Government argues that Defendant’s cla im on appeal is not reviewable because the district court recognized it s discretion to depart but refused to do so. In United States v. Castillo , 140 F.3d 874, 887-88 (10th Cir. 1998), this court clarified when it has jurisdiction to review a sentencing court’s refusal to depart downward from the sentencing guidelines. Ca stillo clearly held that a-3-

defendant has no right to appeal a court’s refusal to depart downward except “where the sentencing court concludes that an entir e class of circumstances never constitutes the basis for a downward departure.” I d. at 888. In other words, we have jurisdiction to review a refusal to depart dow nward only if the sentencing court believed that it had no discretion to depart downward based on the class of factors proffered by the defendant. Having reviewed the law and both parties’ arguments , including the Government’s concession that the court had the auth ority to depart, the district court stated that it was “unconvinced that either the medical request, the support request, the cultural assimilation request or the c ombination of those requests meets the requirements for a downward departure in this instance.” R., Vol. II at 10. From this language, we conclude that the distr ict court understood that it had the discretion to depart downward but found that th e facts of this case were not sufficient to justify a departure. Accordingly, because the sentence imposed is proper ly within the guideline range, see Castillo , 140 F.3d at 888, we GRANT defense counsel’s motion to withdraw and DISMISS the appeal for lack of jurisdiction. Entered for the Court
Monroe G. McKay Circuit Judge