United States of America, Plaintiff-appellee, v. Mario Garcia-vargas, Defendant-appellant, 5 F.3d 548 (10th Cir. 1993)

ORDER AND JUDGMENT¹ 

After examining the briefs and 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); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

U.S. Customs officers arrested defendant Mario Garcia-Vargas as he attempted to enter the United States from Mexico with marijuana. Mr. Garcia pled guilty to importation of less than 50 kilograms of marijuana in violation of 21 U.S.C. 952(a), 960(a) (1) & (b) (4) (1988), and to possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. 841(a) (1) & (b) (1) (D) (1988). He appeals the sentence imposed by the district court, arguing thata downward departure from the sentencing guidelines is justified. For the reasons stated below, we dismiss defendant's appeal for lack of jurisdiction.

Mr. Garcia's presentence report identified a guideline range of twenty-one to twenty-seven months imprisonment. The district court sentenced Mr. Garcia to twenty-one months imprisonment followed by three years of supervised release. Relying solely on U.S. v. Pena, 930 F.2d 1486 (10th Cir. 1991), Mr. Garcia now argues, for the first time on appeal, that the mitigating circumstances particular to his situation justify a downward departure from the guidelines and that the district court erred in its failure to depart downward.² 

A defendant's right to appeal a federally imposed sentence is governed by 18 U.S.C. 3742(a) (1988). United States v. Garcia, 919 F.2d 1478, 1479 (10th Cir. 1990). Under section 3742(a), a sentence imposed within the applicable guideline range is not appealable unless imposed in violation of law or as a result of an incorrect application of the guidelines. 18 U.S.C. 3742(a) (1)-(2) (1988); Garcia, 919 F.2d at 1479 (citations omitted). This Circuit has held on numerous occasions that "we do not have jurisdiction to hear an appeal over the trial court's discretionary refusal to depart downward from the guidelines." United States v. Davis, 900 F.2d 1524, 1529-30 (10th Cir.), cert. denied, 111 S. Ct. 155 (1990); see also United States v. Soto, 918 F.2d 882, 883 (10th Cir. 1990); United States v. Havens, 910 F.2d 703, 707 (10th Cir. 1990); United States v. Lowden, 905 F.2d 1448, 1449 (10th Cir. 1990); United States v. Richardson, 901 F.2d 867, 870 (10th Cir. 1990).

Defendant does not argue that his sentence was imposed in violation of law or that the guidelines were incorrectly applied. On the contrary, he "concedes that he was sentenced within the appropriate guideline range." Aplt. Br. at 8. Rather, defendant argues that the district court should have departed downward, as in Pena, because of defendant's extraordinary familial circumstances and the aberrational nature of his conduct. Pena, 930 F.2d at 1494-95. The district court below, after receiving no evidence or oral argument justifying a downward departure for Mr. Garcia, sentenced Mr. Garcia to a term of imprisonment within the recommended guideline range. We have no jurisdiction over Mr. Garcia's claim that the district court erred in failing to grant a departure downward that Mr. Garcia did not even request.

Defendant's appeal is DISMISSED.