* This order and judgment is not binding precedent, e xcept under the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 20 1998 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. LLOYD ROGERS,

Defendant-Appellant. No. 97-2124 (D.C. No. CR 96-509) (D. N.M.)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , 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. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant-appellant Lloyd Rogers, along with codefe ndant Denton Thomason, entered a plea of guilty to the charge of bank robbery in violation of 18 U.S.C. § 2113. Defendant’s presentence report r ecommended a total offense level of twenty-one and a criminal history category of I, resulting in a sentencing guideline range of thirty-seven to forty-six months ’ imprisonment. The court sentenced defendant to the high end of the range, f orty-six months. Codefendant Thomason’s presentence report also recommended a to tal offense level of twenty-one, but with a criminal history category of III, establishing a guideline range of forty-six to fifty-seven months’ imprisonm ent. The court sentenced Thomason to the low end of the range, forty-six mon ths. Defendant appeals, asserting that the court abused its discretion by sentencing the two defendants to the same term of i mprisonment despite the difference in their relative criminal history categ ories. For the following reasons, we determine that we are without jurisdiction to en tertain this appeal. Pursuant to 18 U.S.C. § 3742(a), a sentence imposedwithin the guidelines may not be appealed unless it “(1) was imposed in v iolation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; . . . (3) is greater than the sentence specified in the applicable guideline range . . .; or (4) was imposed for an offense for which there is n o sentencing guideline and is plainly unreasonable.” In United States v. Garcia , 919 F.2d 1478, 1481 (10th Cir.-3-

1990), this court interpreted § 3742(a) as prohibit ing review of sentencing decisions which are within an admittedly correct gu ideline range unless challenged as facially illegal, improperly calculat ed, or based on clearly erroneous findings of fact. Here, defendant does not claim any facial illegality, does not challenge the court’s calculation of his guideline range, and doe s not challenge the accuracy of the facts relied on by the sentencing court. Inste ad, defendant’s only argument is that, in light of the disparity in the defendants’ criminal history categories, the district court’s decision to sentence the two defen dants to the same term of imprisonment was an abuse of discretion. In Garcia , we opined that “‘[s]entences within the Guideline s may be deemed to be reasonable and within the exclusive di scretion of the sentencing court solely because of the Commission’s blessing o f the permissible range.’” 919 F.2d at 1481 (quoting United States v. Colon , 884 F.2d 1550, 1555 (2d Cir. 1989)); see also United States v. Morales , 108 F.3d 1213, 1225 (10th Cir. 1997) (holding that district courts have broad discretionin imposing a sentence within the range prescribed by Congress).-4-

Accordingly, because we discern nothing illegal, improper, or erroneous in the district court’s sentencing decision, we are wi thout the power to disturb it, and defendant’s appeal is DISMISSED.

Entered for the Court

Stephen H. Anderson Circuit Judge