UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

vs.

BENITO MONTES-LOZANO,

Defendant - Appellant.

No. 99-2132

(	D.C. No. CR-98-479-BB)

(D.N.M.)

ORDER AND JUDGMENT*

Before BRORBY, KELLY, and MURPHY, Circuit Judges.**

Mr. Montes-Lozano appeals from his conviction for importation of marijuana, 21 U.S.C. §§ 952(a), 963, and conspiracy with intent to distribute, 21 U.S.C. §§ 841(b)(1)(B), 846. After pleading guilty, he was sentenced to 24 months imprisonment, followed by four years supervised release. Mr. Montes- Lozano filed a motion for downward departure with the district court based upon a variety of factors including the great risk of harm he placed himself in while engaged in "backpacking" the marijuana across the desert into the United States. I R. doc. 108. The district court denied his motion and Mr. Montes-Lozano appeals from this denial by way of an Anders brief filed by counsel.

"It is well settled that an appellate court lacks jurisdiction to review a sentencing court's refusal to depart from the Sentencing Guidelines when the sentencing court was aware that it had the authority to depart but declined to exercise that authority and grant the departure." United States v. Fagan, 162 F.3d 1280, 1282 (10th Cir. 1998) (exercising jurisdiction based on district court's unambiguous language that it lacked discretion). Review is only appropriate when the district court erroneously believed that the Sentencing Guidelines deprived it of the power to depart. See United States v. Barrera-Baron, 996 F.2d 244, 245 (10th Cir. 1993) (holding that statement by district judge that he was "not going to" depart was sufficient to show knowledge of discretion to depart).

In denying the motion, the district court made two important comments. When first presented with the motion, the court remarked: "All right. I've read your motion for downward departure. I wish I could do it. I cannot do that." II R. at 31.1 Counsel then proceeded to fully explain the underlying risk of harm argument for a departure. When finished, the court responded: "I don't buy your argument on risk of harm . . . ." Id. at 35. It then sentenced Mr. Montes-Lozano.	Although the court's first statement could be read to imply that the court felt it lacked discretion to depart under any circumstances, such would not be a fair reading, particularly given the court's awareness of then-recent Tenth Circuit caselaw deciding that some of the same grounds relied upon by Mr. Montes- Lozano cannot be the basis for a valid departure. See United States v. Dominguez-Carmona, 166 F.3d 1052, 1057-59 (10th Cir. 1999), overruled on other grounds, United States v. Meyers, 200 F.3d 715, 722 n.3 (10th Cir. 2000); United States v. Soto-Holguin, 163 F.3d 1217, 1221-22 (10th Cir. 1999), overruled on other grounds, United States v. Meyers, 200 F.3d 715, 722 n.3 (10th Cir. 2000). A district court has no authority to depart on invalid grounds. Additionally, the district court's second statement shows that it was aware of its power to depart on valid grounds but declined to do so. The denial of the downward departure was within the discretion of the district court, and we have no jurisdiction to review that decision.

APPEAL DISMISSED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge