F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 8 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-5053
                                                    (D.C. No. 99-CR-127-C)
    DARIAN LEE HOLTSMAN,                                  (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before PORFILIO, ANDERSON , and BALDOCK, Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Holtsman pleaded guilty to one count of bank robbery in

violation of 18 U.S.C. § 2113(a) and (d). The district court, after denying his

motion for downward departure, found that the defendant had a total offense


*
      This order and judgment is not binding precedent, except under the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.
level of twenty-seven and a criminal history category of I, giving a sentencing

range of seventy to eighty-seven months. The defendant was sentenced to eighty

seven months imprisonment followed by five year of supervised release, and

ordered to pay $2,911.80 in restitution.

      Counsel for the defendant has filed a brief pursuant to Anders v.

California, 

(1967), and has requested leave to withdraw. Counsel’s

brief acknowledges that “[t]here are no facts to support an argument by Mr.

Holtsman that the district court failed to depart because it erroneously interpreted

the guidelines as depriving it of the power to depart based on the proffered

circumstances.” 

      Upon the filing of counsel’s Anders brief, the defendant was given an

opportunity to respond. He failed to do so.

      It is well settled that "[a]bsent the trial court's clear misunderstanding of its

discretion to depart, or its imposition of a sentence which violates the law or

incorrectly applies the guidelines, we have no jurisdiction to review a refusal to

depart." United States v. Coddington, 

, 1441 (10th Cir. 1997)

(citations omitted). After a thorough review of the record and counsel’s brief,

the court finds that the district court properly applied the guidelines and

understood its authority when it denied the defendant’s motion for a downward

departure. Therefore, this court lacks jurisdiction to review the discretionary


                                           -2-
decision of the district court not to depart from the guidelines.

      Accordingly, the appeal is DISMISSED. The motion by counsel for the

defendant to withdraw is GRANTED. The mandate will issue forthwith.


                                                     Entered for the Court

                                                     Stephen H. Anderson
                                                     Circuit Judge




                                         -3-