*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The 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. 

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

### DEC 9 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JAVIER CANAS-BRISENO, also known as Canas, Defendant-Appellant. No. 04-1196 (D. Colo.) (D.Ct. No. 02-CR-293-B)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, andBARRETT and BRORBY , Senior Circuit Judges.

After examining the briefs and appellate record, th is panel 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. 34.1.9(G). The case is therefore ordered submitted without oral argument.-2-

Appellant Javier Canas-Briseno, a federal prisoner represented by counsel, pled guilty to one count of knowingly and intention ally conspiring to distribute and possess with the intent to distribute five kilo grams or more of a mixture or substance containing a detectable amount of cocaine , a Schedule II controlled substance; and fifty grams or more of methamphetami ne or 500 grams or more of a mixture containing a detectable amount of methamp hetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II), and (b)(1)(A ) (viii); and § 846. The district court sentenced Mr. Canas-Briseno to eighty-four mo nths imprisonment followed by five years supervised release. Pursuant to an Anders brief filed by his counsel, Mr. Canas-Briseno appeals the district court’s sent ence. See Anders v. California , 386 U.S. 738, 744 (1967). We dismiss Mr. Canas-Bri seno’s appeal.

Following an eighteen-month investigation, a superc eding indictment against Mr. Canas-Briseno was entered, charging himwith thirty-two counts of drug-related crimes, together with a charge of ille gal reentry into the United States after deportation. In a plea agreement with the government, Mr. CanasBriseno agreed to plead guilty to one count of cons piring to distribute and possession with the intent to distribute substances containing certain amounts of cocaine and methamphetamine, in exchange for the go vernment’s agreement to dismiss the other counts and request both a three-l evel decrease for acceptance of-3-

responsibility under United States Sentencing Guide lines (U.S.S.G.) §3E1.1, and a downward departure for substantial assistance to authorities under U.S.S.G. §5K1.1. At sentencing, the district court applied the government’s requested three-level decrease for acceptance of responsibili ty and the downward departure for substantial assistance, and imposed a sentence of eighty-four months imprisonment. However, the district court denied M r. Canas-Briseno’s request for a recommendation to the Bureau of Prisons for p lacement in a California facility, noting the Bureau of Prisons need not fol low judicial recommendations on placement of federal prisoners.

After Mr. Canas-Briseno filed a timely notice of ap peal, his counsel filed both an Anders appeal brief alleging no meritorious appellate iss ues exist, and a motion requesting an order permitting him to withdr aw as counsel. See Anders , 386 U.S. at 744. Specifically, his counsel points out the district court sentenced Mr. Canas-Briseno within the applicable guideline r ange and applied the requested decrease for acceptance of responsibility and downward departure for substantial assistance to law enforcement authoriti es. As a result, he suggests this court lacks jurisdiction to review the sentencing d ecision because the district court did not erroneously apply the Guidelines or s entence Mr. Canas-Briseno in violation of the law. In addition, Mr. Canas-Brise no’s counsel suggests no-4-

appealable issues exist with respect to his placeme nt in a California facility because the Bureau of Prisons has broad discretion, under 18 U.S.C. § 3621, in designating the place of imprisonment, leaving the district court in this case with no jurisdiction to direct or mandate Mr. Canas-Bris eno’s placement. Pursuant to Anders, this court gave Mr. Canas-Briseno an opportunity to raise points in response to the Anders brief, to which he did not respond. Id.

When reviewing an application of the Sentencing Gui delines, “[t]his court reviews the district court’s legal conclusions unde r the Sentencing Guidelines de

novo and its factual findings for clear error, affordin g great deference to the district court’s application of the Guidelines to t he facts.” United States v. Eaton , 260 F.3d 1232, 1237 (10th Cir. 2001). Under 18 U.S .C. § 3742(a), a sentence which falls within the Sentencing Guidelines cannotbe successfully appealed unless it is imposed in violation of law, as a resu lt of an incorrect application of the Guidelines, or is otherwise premised on facial illegality, improper calculations, or clearly erroneous fact findings. See United States v. Garcia , 919 F.2d 1478, 1479, 1481 (10th Cir. 1990) (relying on 18 U.S.C. § 3742(a)(1) and (2)).

As to placement in a particular facility for purpos es of incarceration, we-5-

have long held the place of confinement is not partof the sentence imposed by the district court, but a matter which the Attorney Gen eral, and now the Bureau of Prisons, has authority to determine. See Prows v. Federal Bureau of Prisons , 981 F.2d 466, 468-69 n.3 (10th Cir. 1992) (explaining the Bureau of Prisons, under 18 U.S.C. § 3621(b), exercises jurisdiction over the p lacement of prisoners, replacing the Attorney General as the entity vested with such authority); Bowen v. United States , 174 F.2d 323, 324 (10th Cir. 1949) (applying 18 U .S.C. § 4082 (repealed and replaced by 18 U.S.C. § 3621(b)), which vested the Attorney General with jurisdiction over the place of a prisoner’s confine ment). Moreover, as the United States Supreme Court has held, “federal prisoners g enerally enjoy no constitutional right to placement in any particularpenal institution.” Prows , 981 F.2d at 468-69 n.3 (citations omitted).

With these principles in mind and after a careful r eview of the record concerning Mr. Canas-Briseno’s sentence, we conclud e the district court did not impose his sentence in violation of law or as a res ult of an incorrect application of the Sentencing Guidelines, and that his sentence is not otherwise improper under 18 U.S.C. § 3742. Clearly, Mr. Canas-Briseno’s sentence falls within the appropriate guideline range, and as his counsel poi nts out, he received both the three-level decrease and downward departure request ed, about which he has no-6-

cause to complain. Similarly, as his counsel expla ins, the district court clearly lacks authority to mandate his placement in a parti cular facility. As a result, no meritorious appellate issues are presented for our review and we lack jurisdiction to review the sentence.

Accordingly, we grant counsel’s request to withdrawand DISMISS Mr. Canas-Briseno’s appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge