* This order and judgment is not binding precedent, except under the doctrines of

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.

UNITED STATES COURT OF APPEALS Filed 7/10/96 TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JANIS L. HORTON,

Defendant-Appellant. No. 96-3033 (Dist. of KS) (D.C. No. 94-CR-10038)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and MURPHY , 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); 10th Cir. R. 34.1.9. This case is therefore ordered submitted without oral argument.-2-

Janis L. Horton appeals the district court’s refusa l to grant a further downward departure of the sentence she received. S he asserts that this court has jurisdiction because the district court mistakenly believed that it lacked the authority to depart downward. For the reasons stat ed below, we affirm. Horton has previously presented appellate issues co ncerning her sentence to this court. The relevant facts from that prior app eal are as follows. On August 30, 1994, Horton pleaded guilty to Counts 1, 2, 3, 5, and 7 of a ten-count indictment, which included four robbery charges andone firearms charge. The presentence report set Horton’s Guidelines range at147 to 168 months. Upon the government’s motion, the district court departed do wnward from the applicable Guidelines range based upon the “substantial assist ance” her cooperation provided to the prosecution of her codefendants. See U.S.S.G. § 5K1.1. Horton received a sentence of two consecutive 60 month terms of impri sonment. Horton appealed the downward departure, asserting that the district court failed to adequately state “the specific reason” fo r the downward departure. Nevertheless, this court affirmed. See United States v. Horton , 67 F.3d 312 (10th Cir. 1995) (table disposition) (available at 1995 WL 590517). Horton next brought a motion pursuant to 18 U.S.C. § 3553(b) fo r further downward departure, arguing that extraordinary family circum stances, involving her six children who are now in separate foster homes and f ace the prospect of separate-3-

adoptions, present mitigating circumstances warrant ing a downward departure.
See U.S.S.G. § 5H1.6. Horton first presented her motion to the district c ourt. The Government submitted a brief opposing the downward departure. The district court stated in its Memorandum Order, “At the time of sentencing, t he court was fully aware of her plight and acquiesced in the government’s motio n for departure in light of her assistance. Given the enormity of her acts, the co urt was not willing to further depart, certainly to the extent that somehow she wo uld be released from custody.” The court then denied her motion. Upon Horton’s su bsequent motion for reconsideration, the district court repeated, “In r eaching a decision here, as previously indicated, the court is fully aware of h er plight and the consequences of her incarceration. The motion now before the co urt has been fully addressed and should be denied.” This appeal followed. At the outset, Horton concedes that this court “lac ks jurisdiction to review a district court’s discretionary refusal to grant adownward departure.” United States v. Fitzherbert , 13 F.3d 340, 344 (10th Cir. 1993), cert. denied, — U.S. —, 114 S. Ct. 1627 (1994). But she argues that this c ourt does have jurisdiction because the district court mistakenly believed thatit lacked the authority to depart from the Guidelines range. She quotes from the Mem orandum Order of the district court, “In this court’s view, unless the g overnment acquiesces in such a-4-

departure, this court is duty-bound to follow the s entencing guidelines which pertain to the sentence imposed on this defendant.” We have elsewhere held that, “If the record is ambi guous concerning the district court’s awareness of its discretion to dep art downward, we presume the court was aware of its authority.” United States v. Nelson , 54 F.3d 1540, 1544 (10th Cir. 1995). “Accordingly, unless the judge’s language unambiguously states that the judge does not believe he has authority to downward depart, we will not review his decision.” United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994). The district court’s statements in context at most exhibit ambiguity concerning its discretionary authority to depart do wnward. We thus presume that the district court was aware of its authority. The district court did expressly indicate that it was aware of Horton’s plight at th e time of the sentencing and thus acquiesced in the Government’s motion for a downwar d departure. The district court made plain its conclusion that Horton had notpresented any new evidence which would merit a further downward departure. What the district court expressed in the sentence q uoted by Horton is the requirement that it apply Guidelines factors in det ermining whether the circumstances warrant a further downward departure. Its reference to the Government at best creates some ambiguity. But un der Nelson and Rodriguez ,-5-

the language used by the district court must unambi guously state that the court believed it lacked authority. Nelson , 54 F.3d at 1544; Rodriguez , 30 F.3d at 1319. In the absence of this unambiguous statement, this court lacks jurisdiction to review the district’s court’s discretionary decisio n not to depart downward from the Guidlelines range. Horton’s appeal is hereby DISMISSED for lack of appellate jurisdiction.
ENTERED FOR THE COURT
Michael R. Murphy Circuit Judge