* 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(G). Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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 

### MAR 25 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 04-2219

v. (D.C. No. CR-04-814-LH) ANTONIO ACUÑA-VALENZUELA aka Antonio Valenzuela Acuña,

Defendant - Appellant. (D. New Mexico)

ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
Defendant Antonio Acuña-Valenzuela pleaded guilty t o illegal reentry by a deported alien previously convicted of an aggravate d felony. 8 U.S.C. § 1326(b)(2). At the sentencing hearing defense co unsel told the court that Defendant’s wife had severe medical problems and th at Defendant’s sole purpose-2-

in illegally entering the United States was to earn money to pay her medical bills. Defendant did not challenge anything in the present ence report. Nor did he request a downward departure. The district court i mposed a sentence of 41 months, the bottom of the Guidelines range of 41-51 months. Defendant argues on appeal that he was entitled to a downward departure because, as a result of his wife’s ill health and h is reason for illegal reentry, his conduct was “‘atypical’ and ‘significantly differ[e d] from the norm’ of conduct covered by the guideline.” Aplt. Br. at 3 (quoting U.S.S.G. § 1A1.1 cmt. 4(b) ¶ 1). Defendant’s argument fails because “[c]ourts of appeals cannot exercise jurisdiction to review a sentencing court’s refusal to depart from the Guidelines, either upward or downward, unless the court refusedto depart because it interpreted the Guidelines to deprive it of the aut hority to do so.” United States v.
Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999). When the r ecord contains only ambiguous statements, we presume that the court “wa s aware of his or her legal authority to depart but chose instead, in an exerci se of discretion, not to depart.” Id. Here, nothing in the record suggests that the dis trict court thought it lacked discretion to depart. Of course, the district court had no occasion to express its view on the matter, because Defendant did not reque st a departure. But that just means that Defendant forfeited the opportunity to o btain the court’s view for the-3-

record. Defendant should not be in a better positi on on appeal than if he had raised the issue below and the court had responded. Moreover, even if we reviewed the merits of Defenda nt’s claim, he would not prevail. Because he did not raise the departur e issue in district court, the applicable standard of review is plain error. To p revail on plain-error review, Defendant must show that the district court (1) com mitted error, (2) the error was plain, and (3) the error affected his substantial r ights. United States v. Cotton , 535 U.S. 625, 631 (2002). If those three condition s are satisfied, this court has discretion to notice the error if “the error seriou sly affect[ed] the fairness, integrity, or public reputation of judicial proceed ings.” Id. at 631-32 (internal quotation marks omitted). There is no plain error here. Defendant’s circumst ances are not the kind that normally merit departure. “In sentencing a de fendant . . ., family ties and responsibilities are not ordinarily relevant in det ermining whether a departure may be warranted.” U.S.S.G. § 5H1.6. Because “family circumstances and responsibilities are a permissible but discouraged factor,” they merit departure “only if the factor is present to an exceptional de gree or in some other way makes the case different from the ordinary case where the factor is present.” United States v. Gauvin , 173 F.3d 798, 807 (10th Cir. 1999) (internal quot ation marks omitted). We have held that circumstances si milar to Defendant’s did not-4-

merit such a departure. See United States v. Reyes-Rodriguez , 344 F.3d 1071, 1076 (10th Cir. 2003) (chronically ill mother and b lind father) ; United States v. Archuleta , 128 F.3d 1446, 1451 (10th Cir. 1997) (sole respon sibility to care for two children and diabetic mother). Failure to depa rt downward was probably not error at all; it certainly was not plain error. Finally, we need not address the effect of the Supr eme Court’s recent decision in United States v. Booker , 125 S. Ct. 738 (2005). Defendant’s brief was filed November 29, 2004, after the Supreme Court ha d decided Blakely v. Washington , 542 U.S. ___, 124 S. Ct. 2531 (2004), and had gra nted a writ of certiorari in Bookeron August 2, 2004. Indeed, both Blakelyand the Supreme Court’s grant of a writ of certiorari in Bookerpreceded Defendant’s August 17, 2004, sentencing hearing. Defendant did not raise aBooker issue either at his hearing or on appeal. We decline to do so sua sponte
. We AFFIRM the judgment below.
ENTERED FOR THE COURT

Harris L Hartz Circuit Judge