* The Honorable Paul G. Cassell, United States Distri ct Judge, United States

District Court for the District of Utah, sitting bydesignation. 

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

### OCT 6 2004 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. FILABERTO DIAS-RAMOS, Defendant-Appellant. No. 01-2378

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-00-1587 LH)

Michael A. Keefe, Assistant Federal Public Defender(Joseph W. Gandert, Assistant Federal Public Defender, on the briefs), Albuquerque, New Mexico, for Defendant-Appellant. James Miles Hanisee, Assistant U.S. Attorney (DavidC. Iglesias, United States Attorney, and Norman Cairns, Assistant U.S. Attorne y, on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before SEYMOURand LUCERO , Circuit Judges, and CASSELL , * District Judge.

SEYMOUR , Circuit Judge.-2-

Filaberto Dias-Ramos pled guilty to possession withintent to distribute one kilogram and more of heroin, in violation of 21 U.S .C. § 841(a)(1). He appeals the district court’s judgment and sentence, contend ing the court erroneously determined it lacked the authority to depart downwa rd from the sentencing guidelines. We conclude we lack jurisdiction and d ismiss the appeal.

I Mr. Dias-Ramos consented to a police search of a su itcase in his possession at a bus station in Albuquerque, New Mexico, on Nov ember 17, 2000. The officers discovered 3.92 kilograms of heroin in a f alse bottom in the suitcase. Mr. Dias-Ramos pled guilty to possession with intent to distribute one kilogram and more of heroin. Using the 2000 version of the sentencing guidelines , the United States Probation Office calculated Mr. Dias-Ramos’s base o ffense level at 34. His total offense level was 27 after reductions for acceptanc e of responsibility, minor participation, and the safety valve provision. The government stipulated to the reductions. Prior to sentencing, Mr. Dias-Ramos fi led a motion for a downward departure based on, among other factors, family cir cumstances and aberrant behavior. In an addendum to its presentence report , the Probation Office considered Mr. Dias-Ramos’s arguments and explainedwhy, in its view, the1 For sentencing purposes, a defendant is responsibl e for the drugs linked to

conduct he personally undertakes, such as Mr. Dias- Ramos’s carrying the suitcase in this case, even if the defendant is unaware of t he quantity of drugs in his possession. See United States v. Lockhart , 37 F.3d 1451, 1454 (10th Cir. 1994) (where driver knew purpose of a trip was to obtain cocaine, quantity of drugs attributed to him did not need to be foreseeable). -3- guidelines, and particularly the adjustments, had t aken into consideration all of Mr. Dias-Ramos’s relevant circumstances. The Probation Office thus asserted that Mr. Dias-Ramos’s case was not outside the heartland of those cases the guidelines were intended to cover, and therefore di d not warrant departure. During his sentencing hearing before the district c ourt, Mr. Dias-Ramos presented a third ground for departure he had not r aised in his previous written motion. He contended that because he was merely a courier with no knowledge of the amount or type of contraband he was transportin g, his case was one that fell outside the sentencing heartland and therefore a de parture was warranted. 1 The court denied the requested departure: Well, I have some serious sympathy for the defendan t and his family. But this is not the first time that I’ve seen someo ne in the same situation who has admitted transporting contraband, and not knowing the amount of the contraband, and having faced sent encing according to the guidelines, which takes into consideration t he amount of the contraband. It’s not an unusual set of circumstanc es. I have to agree that sometimes the sentencing guide lines are so–what appears to be too harsh a sentence, based upon the amount of contraband that’s being transported. And it alw ays is more harsh, it appears, at least, when you have someone who com es from the type of family situation that this defendant does. However, I have to agree with the probation office that this-4-

does not take him out of the heartland of the cases for which the guidelines have been designed. And maybe that’s a failure of the guidelines to not take into consideration personal circumstances of the defendant and his family, but they don’t. Ther e is no evidence before the Court that the defendant has previously engaged in such activity, but just that fact alone does not make th e result of aberrant behavior apply. I have a great deal of sympathy fo r him, as I’ve said, and the family ties and responsibilities, the econo mic, the depressed area in which he and his family reside. His two ch ildren, the period of time that he has worked continuously as a truck driver and lived with and financially supported his wife are all, I think, wonderful things; but that does not, according to my understa nding of the application of the guidelines, permit me to depart. It would be nice if I–if I had that kind of discretion. I don’t thi nk I do. And it may be that you want to have this matter con sidered by the Tenth Circuit, but I’m going to have to deny th e motion for a downward departure for the reasons that I’ve stated

. Unfortunately, there are many aliens, including ill egal aliens, who are in the same situation as the defendant. An d for that reason, I conclude that he’s not outside the heartland of the cases to which the guidelines apply. Sent. tr. at 23-25. The court sentenced Mr. Dias-R amos to seventy months. On appeal, Mr. Dias-Ramos does not contend the district court erred in denying a downward departure based on family circum stances or aberrant behavior. We therefore address only his argument r egarding the potential departure for lack of knowledge.

II “For most convictions, a sentencing court may depart from the sentence range set by the Guidelines only if it ‘finds that there exists an aggravating or2 Mr. Dias-Ramos correctly points out that our casel aw regarding our

jurisdiction to review downward departure sentencin g appeals appears to be out of step with all the other circuits. If the district court’s sentencing language is ambiguous, these other courts either accept jurisdi ction, or remand to the district court for clarification or reconsideration. See, e.g. , United States v. Smith , 278 F.3d 605, 609-11 (6th Cir. 2002); United States v. Powell , 269 F.3d 175, 179-80 (3d Cir. 2001); United States v. Lewis , 249 F.3d 793, 795 (8th Cir. 2001); United States v. Rojas-Millan , 234 F.3d 464, 475 (9th Cir. 2000); United States v. Thames , 214 F.3d 608, 612 (5th Cir. 2000); United States v. Mignott , 184 F.3d 1288, 1290 (11th Cir. 1999); United States v. Aker , 181 F.3d 167, 172-74 (1st Cir. (continued...) -5- mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formu lating the guidelines.’” United States v. Lang , 364 F.3d 1210, 1213-14 (10th Cir. 2004) (quoting 18 U.S.C. § 3553(b)(1)). Based on our review of the c ases, a district court tends to do one of three things when denying a request for adeparture: (1) make an unambiguous statement that a category of requested departures, as a matter of law, never constitutes valid grounds for departure and therefore the court has no authority to depart; (2) make an unambiguous statem ent that the defendant’s particular circumstances do not warrant departure; or (3) make a more general or ambiguous statement that renders it difficult to as certain the court’s rationale for denying the departure. We have declared in this ci rcuit that we have jurisdiction to review only cases in the first category. See United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998); United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994). 2 As we explained in Castillo :2 (...continued)

1999); United States v. Aramony , 166 F.3d 655, 665 (4th Cir. 1999); United States v. Vahovick, 160 F.3d 395, 398-99 (7th Cir. 1998); United States v. Graham , 83 F.3d 1466, 1481 (D.C. Cir. 1996); United States v. Ekhator , 17 F.3d 53, 55 (2d Cir. 1994). Nevertheless, absent en banc review or a superceding opinion from the United States Supreme Court, this panel must apply Castillo and Rodriguez

. See United States v. Lopez , 372 F.3d 1207, 1212 & n.6 (10th Cir. 2004) (“We are bound by the precedent of prior pane ls absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” (quoting In re Smith , 10 F.3d 723, 724 (10th Cir. 1993))). If counsel for Mr. Dias-Ramos believes that en banc review of the rule in Castillo and Rodriguezis warranted, an appropriate petition should be filed. -6- the courts of appeals cannot exercise jurisdiction to review a sentencing court’s refusal to depart from the sente ncing guidelines except in the very rare circumstance that the distr ict court states that it does not have any authority to depart from the s entencing guideline range for the entire class of circumstances proffer ed by the defendant. This exception does not apply when a se ntencing court concludes under the defendant’s particular circumstances that it does not have the authority to depart. 140 F.3d at 887 (citations omitted). Here, the district court was ambiguous with respectto its authority to depart based on a drug courier’s lack of knowledge of the quantity of drugs he is carrying. We cannot determine whether the court de nied the departure because (a) the court considered Mr. Dias-Ramos’s asserted lack of knowledge and determined that the facts of his particular case pl aced him in the heartland, or (b) the court believed it lacked legal authority to dep art whenever a courier seeks a departure based on lack of knowledge. The districtcourt denied the departure after describing the facts of this case as “not an unusual set of circumstances,”-7-

Sent. tr. at 23, and stating that lack of knowledge is “so common in the cases that I have had in my court, I can’t tell you how many i t might be. It’s so-run-of-themill. It’s what happens.” Id. at 15. The court’s final word on the matter, however, suggests denial both because Mr. Dias-Ramo s’s particular case was within the heartland of courier-defendants, and because the court believed it could not depart for the class of circumstances pro ffered: “[u]nfortunately, there are many aliens . . . who are in the same situation as the defendant. And for that reason, I conclude that he’s not outside the heartl and of the cases to which the guidelines apply.” Id. at 24-25. The district court did not unambiguously state it l acked authority to depart from the guidelines for an entire class of circumst ances. Pursuant to Castillo and Rodriguez , therefore, we cannot exercise jurisdiction to rev iew this matter. Accordingly, we DISMISS the appeal.