UNITED STATES COURT OF APPEALS
Filed 7/10/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-3033
v. (Dist. of KS)
(D.C. No. 94-CR-10038)
JANIS L. HORTON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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. This 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This order and judgment is not binding precedent, except under the doctrines of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.
Janis L. Horton appeals the district court’s refusal to grant a further
downward departure of the sentence she received. She asserts that this court has
jurisdiction because the district court mistakenly believed that it lacked the
authority to depart downward. For the reasons stated below, we affirm.
Horton has previously presented appellate issues concerning her sentence to
this court. The relevant facts from that prior appeal are as follows. On August
30, 1994, Horton pleaded guilty to Counts 1, 2, 3, 5, and 7 of a ten-count
indictment, which included four robbery charges and one firearms charge. The
presentence report set Horton’s Guidelines range at 147 to 168 months. Upon the
government’s motion, the district court departed downward from the applicable
Guidelines range based upon the “substantial assistance” her cooperation provided
to the prosecution of her codefendants. See U.S.S.G. § 5K1.1. Horton received a
sentence of two consecutive 60 month terms of imprisonment.
Horton appealed the downward departure, asserting that the district court
failed to adequately state “the specific reason” for the downward departure.
Nevertheless, this court affirmed. See United States v. Horton, 67 F.3d 312 (10th
Cir. 1995) (table disposition) (available at 1995 WL 590517). Horton next
brought a motion pursuant to 18 U.S.C. § 3553(b) for further downward
departure, arguing that extraordinary family circumstances, involving her six
children who are now in separate foster homes and face the prospect of separate
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adoptions, present mitigating circumstances warranting a downward departure.
See U.S.S.G. § 5H1.6.
Horton first presented her motion to the district court. The Government
submitted a brief opposing the downward departure. The district court stated in
its Memorandum Order, “At the time of sentencing, the court was fully aware of
her plight and acquiesced in the government’s motion for departure in light of her
assistance. Given the enormity of her acts, the court was not willing to further
depart, certainly to the extent that somehow she would be released from custody.”
The court then denied her motion. Upon Horton’s subsequent motion for
reconsideration, the district court repeated, “In reaching a decision here, as
previously indicated, the court is fully aware of her plight and the consequences
of her incarceration. The motion now before the court has been fully addressed
and should be denied.” This appeal followed.
At the outset, Horton concedes that this court “lacks jurisdiction to review
a district court’s discretionary refusal to grant a downward departure.” United
States v. Fitzherbert, 13 F.3d 340, 344 (10th Cir. 1993), cert. denied, — U.S. —,
114 S. Ct. 1627 (1994). But she argues that this court does have jurisdiction
because the district court mistakenly believed that it lacked the authority to depart
from the Guidelines range. She quotes from the Memorandum Order of the
district court, “In this court’s view, unless the government acquiesces in such a
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departure, this court is duty-bound to follow the sentencing guidelines which
pertain to the sentence imposed on this defendant.”
We have elsewhere held that, “If the record is ambiguous concerning the
district court’s awareness of its discretion to depart downward, we presume the
court was aware of its authority.” United States v. Nelson, 54 F.3d 1540, 1544
(10th Cir. 1995). “Accordingly, unless the judge’s language unambiguously states
that the judge does not believe he has authority to downward depart, we will not
review his decision.” United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.
1994).
The district court’s statements in context at most exhibit ambiguity
concerning its discretionary authority to depart downward. We thus presume that
the district court was aware of its authority. The district court did expressly
indicate that it was aware of Horton’s plight at the time of the sentencing and thus
acquiesced in the Government’s motion for a downward departure. The district
court made plain its conclusion that Horton had not presented any new evidence
which would merit a further downward departure.
What the district court expressed in the sentence quoted by Horton is the
requirement that it apply Guidelines factors in determining whether the
circumstances warrant a further downward departure. Its reference to the
Government at best creates some ambiguity. But under Nelson and Rodriguez,
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the language used by the district court must unambiguously state that the court
believed it lacked authority. Nelson, 54 F.3d at 1544; Rodriguez, 30 F.3d at 1319.
In the absence of this unambiguous statement, this court lacks jurisdiction to
review the district’s court’s discretionary decision not to depart downward from
the Guidlelines range.
Horton’s appeal is hereby DISMISSED for lack of appellate jurisdiction.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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