FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 19, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 07-1091
v. D. Colo.
FERNA ND O PINA -RO DR IGU EZ, (D.C. No. 05-CR -438-PSF)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 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This order and judgment is not binding precedent except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I. BACKGROUND
Fernando Pina-Rodriguez pled guilty to a charge of conspiracy to possess,
with intent to distribute, five kilograms or more of cocaine in violation of 21
U.S.C. §§ 841(a)(1) and 846. Prior to sentencing, he filed a motion for downward
departure. 1 In it, he claimed his criminal behavior was “aberrant” under USSG
§5K2.20. 2 The government then moved for a downward departure under USSG
§5K1.1. In that motion, the government stated it believed downward departure
was appropriate because of Pina-Rodriguez’s cooperation, but recommended a
more limited departure than he requested.
At sentencing, the district court determined Pina-Rodriguez’s total offense
level was 29 and his criminal history category was I, resulting in a guidelines
range of 87 to 108 months. The district court denied Pina-Rodriguez’s motion for
downward departure (on the basis of aberrant behavior), but granted the
government’s motion for downward departure pursuant to USSG §5K1.1
1
A departure occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101, n.1
(10th Cir. 2007). A variance occurs “when a court enhances or detracts from the
recommended range through application of § 3553(a) factors.” Id.
2
The 2006 edition of the United States Sentencing Guidelines w as used to
calculate Pina-Rodriguez’s guideline range. Policy Statement §5K 2.20 allow s a
downward departure “only if the defendant comm itted a single criminal
occurrence or . . . transaction that was (1) comm itted without significant
planning; (2) was of limited duration; and (3) represents a marked deviation by
the defendant from an otherw ise law-abiding life.”
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(substantial assistance to authorities) and sentenced him to a term of 48 months
imprisonment, as the government recommended.
On appeal Pina-Rodriguez argues the district court erred in not departing
downward to a greater extent. In addition, he argues the sentence is substantively
unreasonable.
A. Extent of D ownward Departure
Pina-Rodriguez’s complaint about the degree to w hich the district court
departed must be dismissed for lack of jurisdiction. “This court has no
jurisdiction . . . to review a district court’s discretionary decision to deny a
motion for downward departure on the ground that a defendant’s circumstances do
not warrant the departure.” United States v. Sierra-Castillo, 405 F.3d 932, 936
(10th Cir. 2005). And that did not change after United States v. Booker, 543 U.S.
220 (2005). See United States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007).
(“Even after Booker, this court has no jurisdiction to review a district court's
discretionary decision to deny a motion for downward departure on the ground
that a defendant's circumstances do not warrant the departure.”). Here, the
district court clearly understood its discretionary authority to depart to whatever
extent it determined appropriate under the guidelines, yet declined to depart
further, as Pina-Rodriguez urged. Under these circumstances, we lack
jurisdiction and decline to consider the argument.
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B. Reasonableness of the Sentence 3
W hen requested to do so, we review sentences for reasonableness. United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). Had the district court
sentenced Pina-Rodriguez to 108 months (i.e., the top of the guideline range), the
sentence would have been presumptively reasonable. See id. at 1054; United
States v. Rita, – U.S. – ,127 S.Ct. 2456, 2462 (A court of appeals “may apply a
presumption of reasonableness to a district court sentence that reflects a proper
application of the Sentencing Guidelines.”), reh’g denied, __ S.Ct. __, 2007 W L
2349931 (2007). Instead, and as recommended by the government, the district
court departed downward a total of 39 months below the bottom of the guideline
range (and 60 months below the top of the guideline range). It addressed Pina-
Rodriguez’s arguments for a greater downward departure and stated its reasons
for refusing the request. That satisfied the procedural component of
reasonableness review. See Rita, 127 S.Ct. at 2465; United States v. Pruitt, 2007
W L 2430125, *9 (10th Cir. 2007) (“[The defendant] does not challenge the
district court's calculation of the G uidelines range, and the district court
3
Pina-Rodriguez makes an obscure reference to the district court’s
obligation to “fully explain” its reasoning for the sentence imposed. (Appellant’s
Br. at 18.) However, Pina-Rodriguez did not articulate the argument or provide
any legal authority therefor. Accordingly, we need not consider a procedural
reasonableness argument in this case. See Fuerschbach v. Southwest Airlines Co.,
439 F.3d 1197, 1209 (10th Cir. 2006) (Appellant waived claim on appeal where
she “ma[d]e no argument, cite[d] to no authority, and direct[ed] us to no evidence
supporting” the claim.)
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adequately explained its reasons for imposing the sentence it did. Thus, we find
no procedural error in the district court's decision.”).
Pina-Rodriguez’s arguments under 18 U.S.C. § 3553(a) fail. His
description of sympathetic circumstances, including a history of community
service, a low criminal history, and family hardship due to his current
incarceration, were considered by the district court. W e are neither permitted nor
inclined to substitute our judgment for the district court’s fully informed decision
and considered exercise of discretion. In any event, he received a sentence of
approxim ately one-half of the lower end of the guideline range. In no way are w e
prepared to say such a sentence is unreasonably harsh.
Appellant’s unopposed motion for leave to file his reply brief out of time is
G RA N TED .
AFFIRM ED.
FOR TH E CO UR T:
Terrence L. O’Brien
United States Circuit Judge
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