* This order and judgment is not binding precedent, e xcept under the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

### JAN 7 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA ,

Plaintiff-Appellee,

v. ROGER KELLEY, also known as Tito,

Defendant-Appellant. No. 99-3241 (D.C. No. 96-40055-SAC) (D. Kan.)

ORDER AND JUDGMENT *

Before TACHA, McKAY, and PORFILIO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.2--

Defendant Roger Kelley pled guilty to a superseding information charging him with one count of possession with intent to dis tribute approximately thirty grams of methamphetamine. See 21 U.S.C. § 841(a)(1). Prior to sentencing, he moved for a downward departure from the applicable Guideline range on the basis of extraordinary family circumstances. The governm ent conceded that the sentencing court could, in principle, grant such a departure, but argued that this was not an appropriate case for a favorable exercis e of the court’s discretion in this regard. The court agreed, denied the motion, and sentenced defendant to thirty-six months’ imprisonment followed by three y ears’ supervised release. Defendant now appeals the denial of his motion for downward departure. The government urges us to dismiss the appeal, citi ng the general rule that a discretionary refusal to depart from the applicab le Guideline range is not subject to appellate review. See United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999); see, e.g. , United States v. Williamson , 53 F.3d 1500, 1529-30 (10th Cir. 1995) (rejecting appeal from refusal to depart on f amily-circumstance grounds). Only if the sentencing court erroneously concluded that it had no legal authority to depart-- and unambiguously expressed that misunderstanding--may we review its decision. Fortier , 180 F.3d at 1230 (noting “we treat ambiguous stat ements made by district court judges as though the judge w as aware of his or her legal authority to depart but chose instead, in an exerci se of discretion, not to depart”).-3-

The following comments from sentencing provide no b asis here for invoking the limited exception to the general rule barring appellate review: [T]he ordinary rule is that family ties and respons ibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline s. And a district court may depart only if the factor is present to a n exceptional degree or in some other way to make the case different fro m the ordinary case where the factor is present. . . . [F]or the purpose of this case, I would indicate that I believe that a downward departure might be possible, but I do not feel that it’s appropriate i n this case. * * * * [Defendant] has received a very significant break d ue to the plea agreement reached in this case. Ordinarily we’d be looking at a sentence of 150 months. . . . I’m not going to depart downward in this case. Although, as I say, I think it might be possible, but it’s not appropriate. Appellant’s App. at 119-20. These remarks reflect a proper understanding of the court’s discretionary authority in this context, se e United States v. Archuleta , 128 F.3d 1446, 1449 (10th Cir. 1997), and “evince a con scious decision by the sentencing court to deny the request for a downwarddeparture because the particular facts of [defendant’s] situation did notwarrant it.” Williamson , 53 F.3d at 1530. We have no jurisdiction to review th at decision. See id.-4-

The appeal is DISMISSED.

Entered for the Court

John C. Pofilio Senior Circuit Judge