* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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. ** After examining the briefs and the appellate rec ord, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. 

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

### OCT 26 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JESUS LUGUIN-RODRIGUEZ, aka Benjamin Alamillo-Ceron, Defendant-Appellant. No. 00-4043 (D.C. No. 99-CR-564-W) (D. Utah)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges. **

Defendant-Appellant Jesus Luguin-Rodriguez (“Luguin -Rodriguez”) appeals his sentence for illegal re-entry of a prev iously deported alien, in violation of 8 U.S.C. § 1326. Luguin-Rodriguez ple d guilty to this charge on November 15, 1999, two weeks before the United Stat es Attorney’s Office1 Based upon the pre-sentence report, Luguin-Rodrig uez was subject to a

Sentencing Guidelines range of 70 to 87 months. Se e Appellee’s Brief at 3. The district court sentenced him to 70 months, the lowe st available sentence within the applicable guideline range. - 2 - handling his case offered, for a period of a few we eks in December 1999, to recommend a downward departure of two offense level s for several defendants who agreed to plead guilty under 8 U.S.C. § 1326, w aive the pre-sentence report and agree to immediate sentencing. The government did not make this offer to Luguin-Rodriguez, so Luguin-Rodriguez requested that the district court grant him the downward departure absent a motion by the g overnment. The district court declined to grant the downward departure but sentenced Luguin-Rodriguez at the low end of the applicable guideline range. 1 Luguin-Rodriguez now argues that the district courterred in not granting him the downward departure that was offered to othe r similarly situated defendants but that was not offered to Luguin-Rodri guez prior to his entering a guilty plea. At his sentencing hearing, on February 18, 2000, Lu guin-Rodriguez argued that he was entitled, as a matter of due process an d equal protection, to the same downward departure that the prosecution had offeredto similarly situated defendants. The district court rejected Luguin-Rod riguez’s due process and equal protection arguments and denied Luguin-Rodriguez’s request for a downward2 Section 5K2.0 of the Sentencing Guidelines states : Under 18 U.S.C. §3553(b), the sentencing court may impose a sentence outside the range established by the appli cable guidelines, if the court finds “that there exists an aggravating o r mitigating circumstance of a kind, or to a degree, not adequat ely taken into consideration by the Sentencing Commission in formu lating the Guidelines that should result in a sentence differe nt from that described.” . . . The decision as to whether and to what extent departure is warranted rests with the sentencing court on a c ase specific basis.
See U.S. Sentencing Guidelines Manual §5K2.0 (Policy S tatement) (1999).

3 The case of United States v. Luna-Sanchez , Case No. 1088-2:99-CR-561- W, was also appealed to this court. See United States v. Luna-Sanchez , Case No. 00-4042. Our decision in Luna-Sanchez is also issued today and reaches the same conclusion as the case at bar. - 3 - departure under § 5K2.0. 2 (See Sent. Hr’g Tr. at 4, lines 22-25.) The court stat ed only that it had read Luguin-Rodriguez’s motion pap ers and that “in [its] opinion the guidelines should be followed.” (See Sent. Hr’g Tr. at 4, lines 23-25.) The court also referred to its discussion earlier that day in the sentencing hearing of another defendant, Luna-Sanchez, who had raised the same argument. (See Sent. Hr’g Tr. at 5, lines 5-13.) The district court stated that the court’s findings in that case should be incorporated in Luguin-Rodriguez’s c ase for purposes of appeal. 3 (See Sent. Hr’g Tr. at 5, lines 5-13.) It is well-settled in this circuit that the court o f appeals lacks jurisdiction to review a sentencing court’s discretionary refusal t o depart from the Sentencing Guideline’s sentencing range in a given case unless the refusal to depart was- 4 -

based upon an impermissible factor such as race or gender, or the district court incorrectly believed it did not have authority to d epart under the Sentencing Guidelines. 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 r eview a sentencing court’s refusal to depart from the sentencing guidelines ex cept in the very rare circumstance that the district court states that itdoes not have the authority to depart from the sentencing guidelines range for the entire class of circumstances proffered by the defendant.”); United States v. Row en , 73 F.3d 1061, 1063 (10th Cir. 1996) (“We have jurisdiction to review a distr ict court’s refusal to depart downward only when ‘the district court refused to d epart because it erroneously interpreted the Guidelines as depriving it of the p ower to depart based on the proffered circumstances . . . ’”) (quoting United S tates v. Barrera-Barron , 996 F.2d 244, 245 (10th Cir. 1993)). We will not find that the district court was unaware of its discretion to depart downward from the Guidelines unless the judge’s language “unambiguously states that the jud ge does not believe he has authority to downward depart.” United States v. Ro driguez , 30 F.3d 1318, 1319 (10th Cir. 1994); see also id. (“[W]e treat ambiguous statements made by district judges as though the judge was aware of his or her legal authority to depart but chose instead, in an exercise of discretion, not to depart.”). When the court is- 5 -

silent as to its discretionary authority, we assume that the district court knew that it possessed discretion to depart but declined to d o so. See Rowen , 73 F.3d at 1063 (“We do not assume that silence indicates igno rance”). Here, a review of the record does not reveal any un ambiguous statement by the district court that it lacked discretion to dow nward depart from the Sentencing Guidelines. The district court reviewed the submis sions of both parties and determined that the Sentencing Guidelines should be followed. Under these circumstances, this court simply cannot conclude th at the district court erroneously believed that it lacked discretionary authority to depart from the Guidelines in this case. AccordRowen , 73 F.3d at 1063. We must, therefore, conclude that we lack jurisdiction to review the di strict court’s decision. See Rodriguez , 30 F.3d at 1319 (“Absent such a misunderstanding on the sentencing judge’s part, illegality or an incorrect applicatio n of the guidelines, we will not review the denial of a downward departure.”) (citin g United States v. Garcia , 919 F.2d 1478, 1481 (10th Cir. 1990)). For the foregoing reasons, we DISMISS Luguin-Rodrig uez’s appeal of the district court’s sentencing decision.
ENTERED FOR THE COURT David M. Ebel Circuit Judge