* This order and judgment is not binding precedent, e xcept under the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

### NOV 4 1997 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. GILBERT ESPINOZA-SAENZ,

Defendant-Appellant. No. 97-2104 (D.C. No. CR-96-489-SC) (D. N.M.)

ORDER AND JUDGMENT *

Before BALDOCK, BARRETT, and MURPHY, 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 appeals the district court’s discretionary denial of a downward departure from the guideline mandated sentence to h ome detention due to his physical condition. See U.S.S.G. § 5H1.4. Defendant’s counsel has filed abrief pursuant to Anders v. California , 386 U.S. 738 (1967), in which he states the appeal is frivolous because this court lacks jurisd iction to decide an appeal from the district court’s discretionary refusal to granta downward departure. Counsel has also filed a motion to withdraw pursuant to And ers and 10th Cir. R. 46.4.2. Defendant was provided with a copy of counsel’s And ers brief and allowed “to raise any points that he chooses.” Anders , 386 U.S. at 744. He alleges, without providing support, that this court has juri sdiction to decide whether a district court’s discretionary denial of a motion for downward departure was proper. Also, he argues that his counsel was ineff ective because (1) he instructed counsel to request downward departure of his guidel ine sentence, not home detention; (2) counsel should have objected to indi cations by the government that he had other charges pending against him, he was an escapee from the Bureau of Prisons, and he threatened the cooperating witness or members of the family of the cooperating witness; and (3) his counsel did no t properly argue his physical condition, criminal history, or the facts of the ca se.1 We also may review sentences that are illegal or th e result of incorrect

applications of the guidelines. See United States v. Belt , 89 F.3d 710, 714 (10th Cir. 1996). Neither of these jurisdictional bases is applicable here, however. -3- Unless the district court was unaware of its author ity to depart downward from the guidelines, the court’s failure to depart is unreviewable on appeal. 1
See United States v. Sanders , 18 F.3d 1488, 1490 (10th Cir. 1994). Because the district court judge plainly was aware of his a uthority to grant a downward departure and refused to do so, see III R. at 11, his decision must stand. We lack jurisdiction to review the refusal to depart. See Sanders , 18 F.3d at 1491. We conclude defendant’s ineffective assistance of c ounsel claims should be brought in collateral proceedings rather than on th is direct appeal. See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). “ Such claims brought on direct appeal are presumptively dismissable . . . .” Id. Accordingly, the appeal is DISMISSED. Counsel’s mo tion to withdraw is GRANTED. The mandate shall issue forthwith.

Entered for the Court

James E. Barrett Senior Circuit Judge