* This order and judgment is not binding precedent, except under the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

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, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case 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 home detention due to his

physical condition. See U.S.S.G. § 5H1.4. Defendant’s counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), in which he states the

appeal is frivolous because this court lacks jurisdiction to decide an appeal from

the district court’s discretionary refusal to grant a downward departure. Counsel

has also filed a motion to withdraw pursuant to Anders and 10th Cir. R. 46.4.2.

Defendant was provided with a copy of counsel’s Anders 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 jurisdiction to decide whether

a district court’s discretionary denial of a motion for downward departure was

proper. Also, he argues that his counsel was ineffective because (1) he instructed

counsel to request downward departure of his guideline sentence, not home

detention; (2) counsel should have objected to indications 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 not properly argue his physical

condition, criminal history, or the facts of the case.
1 We also may review sentences that are illegal or the 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 authority 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 authority 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 counsel claims should be

brought in collateral proceedings rather than on this 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 motion to withdraw is

GRANTED. The mandate shall issue forthwith.

Entered for the Court

James E. Barrett

Senior Circuit Judge