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UNITED
STATES COURT OF APPEALS
TENTH CIRCUIT
ORDER AND JUDGMENT(*)
Before TACHA, Chief
Judge, EBEL and LUCERO,
Circuit Judges.
Defendant-Appellant challenges the district court's refusal to grant a
discretionary downward departure for diminished mental capacity pursuant to
United States Sentencing Guideline § 5K2.13. We find that we lack jurisdiction
to consider this claim, as "[a] discretionary refusal to depart downward is not
reviewable by this court unless it appears from the record the sentencing court
erroneously believed the Guidelines did not permit a downward departure."
United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir. 1995). Our review of the
record reflects that the district judge was indeed aware that a downward
departure was possible under the Guidelines, but found the evidence insufficient
to merit such a downward departure under § 5K2.13. After thoroughly reviewing
Appellant's proffered evidence of diminished mental capacity, the district court
concluded, "[t]herefore, the Court finds that there is not a sufficient basis in the
record here to permit a downward departure for diminished capacity."
Accordingly, we DISMISS this appeal for lack of jurisdiction.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
FOOTNOTES
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*.After examining
appellant's brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law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.
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