*This order and judgment is not binding precedent, except under the doctrines of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, this panel has determined

unanimously that oral argument would not materially assist 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.
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Janis L. Horton appeals the district court’s refusal to grant a further

downward departure of the sentence she received. She asserts that this court has

jurisdiction because the district court mistakenly believed that it lacked the

authority to depart downward. For the reasons stated below, we affirm.

Horton has previously presented appellate issues concerning her sentence to

this court. The relevant facts from that prior appeal 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 and one firearms charge. The

presentence report set Horton’s Guidelines range at 147 to 168 months. Upon the

government’s motion, the district court departed downward from the applicable

Guidelines range based upon the “substantial assistance” 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 imprisonment.

Horton appealed the downward departure, asserting that the district court

failed to adequately state “the specific reason” for 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) for further downward

departure, arguing that extraordinary family circumstances, involving her six

children who are now in separate foster homes and face the prospect of separate
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adoptions, present mitigating circumstances warranting a downward departure. 

See U.S.S.G. § 5H1.6.

Horton first presented her motion to the district court. The Government

submitted a brief opposing the downward departure. The district court stated in

its Memorandum Order, “At the time of sentencing, the court was fully aware of

her plight and acquiesced in the government’s motion for departure in light of her

assistance. Given the enormity of her acts, the court was not willing to further

depart, certainly to the extent that somehow she would be released from custody.” 

The court then denied her motion. Upon Horton’s subsequent motion for

reconsideration, the district court repeated, “In reaching a decision here, as

previously indicated, the court is fully aware of her plight and the consequences

of her incarceration. The motion now before the court has been fully addressed

and should be denied.” This appeal followed.

At the outset, Horton concedes that this court “lacks jurisdiction to review

a district court’s discretionary refusal to grant a downward 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 court does have jurisdiction

because the district court mistakenly believed that it lacked the authority to depart

from the Guidelines range. She quotes from the Memorandum Order of the

district court, “In this court’s view, unless the government acquiesces in such a
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departure, this court is duty-bound to follow the sentencing guidelines which

pertain to the sentence imposed on this defendant.”

We have elsewhere held that, “If the record is ambiguous concerning the

district court’s awareness of its discretion to depart 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 downward. 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 the time of the sentencing and thus

acquiesced in the Government’s motion for a downward departure. The district

court made plain its conclusion that Horton had not presented any new evidence

which would merit a further downward departure.

What the district court expressed in the sentence quoted by Horton is the

requirement that it apply Guidelines factors in determining whether the

circumstances warrant a further downward departure. Its reference to the

Government at best creates some ambiguity. But under Nelson and Rodriguez,
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the language used by the district court must unambiguously 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 decision 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