United States of America, Plaintiff-appellee, v. Bruce C. Fox, Defendant-appellant, 943 F.2d 1218 (10th Cir. 1991)

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U.S. Court of Appeals for the Tenth Circuit - 943 F.2d 1218 (10th Cir. 1991)

Aug. 29, 1991

Before HOLLOWAY, Chief Judge, EBEL, Circuit Judge, and NOTTINGHAM* , District Judge.


Defendant appealed the district court's sentence following a guilty plea. By opinion filed April 18, 1991, 930 F.2d 820, this court affirmed defendant's sentence in part but remanded the cause to the district court to clarify the reason for its refusal to depart downward from the Guidelines. The court now has for consideration the district court's clarification dated August 13, 1991.

In view of the district court's statement that it exercised discretion in denying a downward department, despite the Guideline authority for such departure, this court lacks jurisdiction to review that discretionary decision. See U.S. v. Soto, 918 F.2d 882, 883-84 (10th Cir. 1990).

Therefore, in accordance with the court's April 18, 1991, opinion and this order, the court affirms the sentence imposed by the district court.


Honorable Edward W. Nottingham, United States District Judge for the District of Colorado, sitting by designation