United States of America, Plaintiff-appellee, v. Mary G. Tarlip, Defendant-appellant, 951 F.2d 1261 (10th Cir. 1991)

This appeal is from an order of the district court sentencing defendant Tarlip to ten years' incarceration followed by a five year term of supervised release. Defendant appeals on the grounds that the district court erred in finding that it was precluded from considering a downward departure from the relevant ten year minimum mandatory sentencing requirements and in sentencing defendant under federal instead of state law. We affirm.

This court does not have appellate jurisdiction to review the district court's discretionary refusal to depart downward. United States v. Soto, 918 F.2d 882, 883 (10th Cir. 1990). It is clear that the district judge in this case was aware that, in appropriate cases, he had the discretion to depart downward. He explicitly declined to exercise that discretion. Thus, we are without jurisdiction to review that discretionary decision.

Defendant argues that her rights to due process of law were violated when the district court sentenced her under federal law rather than under the law of the State of Utah. This court has held that such a sentencing decision does not violate basic principles of due process. United States v. Andersen, 940 F.2d 593, 595 (10th Cir. 1991). The appeal is DISMISSED.