This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

September 19, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 07-1091

v. D. Colo.

FERNANDO PINA-RODRIGUEZ,

Defendant - Appellant.

(D.C. No. 05-CR-438-PSF)

ORDER AND JUDGMENT

*

Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
 A departure occurs “when a court reaches a sentence above or below the 1

recommended Guidelines range through application of Chapters Four or Five of

the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101, n.1

(10th Cir. 2007). A variance occurs “when a court enhances or detracts from the

recommended range through application of § 3553(a) factors.” Id.

 The 2006 edition of the United States Sentencing Guidelines was used to 2

calculate Pina-Rodriguez’s guideline range. Policy Statement §5K2.20 allows a

downward departure “only if the defendant committed a single criminal

occurrence or . . . transaction that was (1) committed without significant

planning; (2) was of limited duration; and (3) represents a marked deviation by

the defendant from an otherwise law-abiding life.”

-2-

I. BACKGROUND

Fernando Pina-Rodriguez pled guilty to a charge of conspiracy to possess,

with intent to distribute, five kilograms or more of cocaine in violation of 21

U.S.C. §§ 841(a)(1) and 846. Prior to sentencing, he filed a motion for downward

departure. In it, he claimed his criminal behavior was “aberrant” under USSG 1

§5K2.20. The government then moved for a downward departure under USSG 2

§5K1.1. In that motion, the government stated it believed downward departure

was appropriate because of Pina-Rodriguez’s cooperation, but recommended a

more limited departure than he requested. 

At sentencing, the district court determined Pina-Rodriguez’s total offense

level was 29 and his criminal history category was I, resulting in a guidelines

range of 87 to 108 months. The district court denied Pina-Rodriguez’s motion for

downward departure (on the basis of aberrant behavior), but granted the

government’s motion for downward departure pursuant to USSG §5K1.1
-3-

(substantial assistance to authorities) and sentenced him to a term of 48 months

imprisonment, as the government recommended.

On appeal Pina-Rodriguez argues the district court erred in not departing

downward to a greater extent. In addition, he argues the sentence is substantively

unreasonable. 

A. Extent of Downward Departure

Pina-Rodriguez’s complaint about the degree to which the district court

departed must be dismissed for lack of jurisdiction. “This court has no

jurisdiction . . . to review a district court’s discretionary decision to deny a

motion for downward departure on the ground that a defendant’s circumstances do

not warrant the departure.” United States v. Sierra-Castillo, 405 F.3d 932, 936

(10th Cir. 2005). And that did not change after United States v. Booker, 543 U.S.

220 (2005). See United States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007).

(“Even after Booker, this court has no jurisdiction to review a district court's

discretionary decision to deny a motion for downward departure on the ground

that a defendant's circumstances do not warrant the departure.”). Here, the

district court clearly understood its discretionary authority to depart to whatever

extent it determined appropriate under the guidelines, yet declined to depart

further, as Pina-Rodriguez urged. Under these circumstances, we lack

jurisdiction and decline to consider the argument. 
 Pina-Rodriguez makes an obscure reference to the district court’s 3

obligation to “fully explain” its reasoning for the sentence imposed. (Appellant’s

Br. at 18.) However, Pina-Rodriguez did not articulate the argument or provide

any legal authority therefor. Accordingly, we need not consider a procedural

reasonableness argument in this case. See Fuerschbach v. Southwest Airlines Co.,

439 F.3d 1197, 1209 (10th Cir. 2006) (Appellant waived claim on appeal where

she “ma[d]e no argument, cite[d] to no authority, and direct[ed] us to no evidence

supporting” the claim.)

-4-

B. Reasonableness of the Sentence3

When requested to do so, we review sentences for reasonableness. United

States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). Had the district court

sentenced Pina-Rodriguez to 108 months (i.e., the top of the guideline range), the

sentence would have been presumptively reasonable. See id. at 1054; United

States v. Rita, – U.S. – ,127 S.Ct. 2456, 2462 (A court of appeals “may apply a

presumption of reasonableness to a district court sentence that reflects a proper

application of the Sentencing Guidelines.”), reh’g denied, __ S.Ct. __, 2007 WL

2349931 (2007). Instead, and as recommended by the government, the district

court departed downward a total of 39 months below the bottom of the guideline

range (and 60 months below the top of the guideline range). It addressed PinaRodriguez’s arguments for a greater downward departure and stated its reasons

for refusing the request. That satisfied the procedural component of

reasonableness review. See Rita, 127 S.Ct. at 2465; United States v. Pruitt, 2007

WL 2430125, *9 (10th Cir. 2007) (“[The defendant] does not challenge the

district court's calculation of the Guidelines range, and the district court
-5-

adequately explained its reasons for imposing the sentence it did. Thus, we find

no procedural error in the district court's decision.”). 

Pina-Rodriguez’s arguments under 18 U.S.C. § 3553(a) fail. His

description of sympathetic circumstances, including a history of community

service, a low criminal history, and family hardship due to his current

incarceration, were considered by the district court. We are neither permitted nor

inclined to substitute our judgment for the district court’s fully informed decision

and considered exercise of discretion. In any event, he received a sentence of

approximately one-half of the lower end of the guideline range. In no way are we

prepared to say such a sentence is unreasonably harsh.

Appellant’s unopposed motion for leave to file his reply brief out of time is

GRANTED.

AFFIRMED.

FOR THE COURT:

Terrence L. O’Brien

United States Circuit Judge