UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FELIPE VEGA SUAREZ, also known as Gerardo Lopez-Guerrero,

Defendant-Appellant.

No. 99-2244

(D.C. No. CR-99-17-HB)

(D. N.M.)

ORDER AND JUDGMENT*

Before TACHA, McKAY, and PORFILIO, 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(G). The case is therefore ordered submitted without oral argument.

The defendant appeals the district court's denial of his request for a downward departure. We dismiss for lack of appellate jurisdiction.

The defendant was convicted, following the entry of a guilty plea, of unlawful reentry of a deported alien. The defendant moved for a downward departure arguing that his criminal history category over-represents the seriousness of his criminal history, see U.S.S.G. § 4A1.3. The district court sentenced the defendant within the guideline range as set forth in the pre- sentence report.

On appeal, the defendant recognizes that under the law in this circuit a defendant may not appeal the district court's discretionary refusal to grant a downward departure. See United States v. Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999) (noting that it is settled law in this circuit and others that a district court's discretionary refusal to depart downward from the guidelines is not appealable).

Rather, the defendant argues that this court should reconsider this position. However, a three-judge panel cannot disregard or overrule circuit precedent. See United States v. Foster, 104 F.3d 1228, 1229 (10th Cir. 1997).

Accordingly, this appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Deanell Reece Tacha

Circuit Judge