United States of America, Plaintiff/appellee, v. Anthony Ray Jefferson and Roosevelt Jefferson, Jr.,defendants/appellants, 931 F.2d 1396 (10th Cir. 1991)

This opinion supplements an opinion previously entered by this court on January 29, 1991 and resolves the final matter which we left open in our prior opinion. U.S.A. v. Jefferson, 925 F.2d 1242 (10th Cir. 1991).

Our prior opinion remanded this case for clarification by the district court as to the reasons why it concluded that it had no discretion to reduce the sentences of Anthony and Roosevelt Jefferson below the levels provided in the guidelines. Id. at 1260. We retained jurisdiction of the case pending clarification of this point. See U.S. v. Lowden, 900 F.2d 213, 217-18 (10th Cir. 1990), cert. denied, --- U.S. ----, 111 S. Ct. 206, 112 L. Ed. 2d 166 (1990).

By order dated March 11, 1991, the district court issued an Order Clarifying Sentencing Statements, which explained that, in the view of the district court, there were no grounds available that would justify the exercise of discretion for a downward departure of the sentence of either of these defendants under the guidelines.

The district court reiterated its belief that the sentences imposed in accordance with the guidelines were harsh. However, the court concluded it could not find "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." U.S.S.G. Sec. 5K2.0.

It is clear from the Order Clarifying Sentencing Statements that the district court properly applied the guidelines in this case and properly determined that there was no basis for exercising discretion to depart from the guideline sentencing range.

We AFFIRM the sentences imposed.