UNITED STATES of America, Plaintiff-Appellee, v. Francisco BLANCO, Defendant-Appellant, 49 F. App'x 614

ORDER Francisco Blanco appeals his judgment of conviction and sentence. The parties have expressly waived oral argument pursuant to Rule 34(j)(3), Rules of the Sixth Circuit, and we agree that oral argument is not necessary. Fed. R.App. P. 34(a). Blanco pleaded guilty to a charge that he conspired to distribute more than five kilograms of cocaine. He was sentenced to 262 months of imprisonment to be followed by five years of supervised release. In his timely appeal, Blanco argues that the district court erred by denying his motion for a downward departure.

Blanco’s contention that the district court should have granted him a downward departure is not cognizable in the circumstances presented in this case. At sentencing, Blanco contended that he was entitled to a downward departure in his offense level, pursuant to USSG § 4A1.3, because his criminal history category significantly overrepresented the seriousness of his criminal history. A district court’s discretionary decision not to depart downward from the guidelines range ordinarily is not appealable. United States v. Byrd, 53 F.3d 144, 145 (6th Cir.1995).

An appeal may be taken, however, when the district court believed that it lacked any authority to depart downward as a matter of law. United States v. Landers, 39 F.3d 643, 649 (6th Cir.1994). To determine whether the court believed that it lacked authority to deviate from the guidelines, we examine the transcript of the sentencing hearing. United States v. Ebolum, 72 F.3d 35, 37 (6th Cir.1995).

Our review of the sentencing transcript reveals that the district court did not mistakenly believe that it lacked the authority to grant the requested departure: it merely found that a departure was not appropriate in light of the particular circumstances of the case. This issue is unappealable. United States v. Buchanan, 2000 WL 183881 (6th Cir.2000). Contrary to Blanco’s contentions, our holding in United States v. Smith, 278 F.3d 605, 611 (6th Cir.2002) is distinguishable. In Smith, we were unable to discern from the record whether the district court was aware of its authority to depart.

See id. (stating that the district court’s ambiguous statements made it unclear whether the court was aware of its discretion to depart). In addition, the applicability of Smith was limited to the specific facts of that case; the most salient fact being that the sentencing court stated that it imposed the “bare minimum” sentence that it was authorized by law to impose. Id. No such statement can be gleaned from the record of the instant case. Accordingly, we affirm the district court’s judgment.