F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          JUL 28 2003
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

        v.                                               No. 02-1455
                                                  (D. Ct. No. 02-CR-178-B)
    MARCO ANTONIO BARRERA-                              (D. Colorado)
    BASILIO,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McKAY and McCONNELL, Circuit
Judges.


       After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance 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.

       Marco Antonio Barrera-Basilio pled guilty to one count of unlawful reentry

into the United States after having previously been deported, in violation of 8


*
 This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
U.S.C. § 1326(a) and (b)(1). The district court sentenced him to 30 months

imprisonment, the minimum sentence within the applicable guideline range under

the United States Sentencing Guidelines. Mr. Barrera-Basilio now appeals the

district court’s refusal to grant him a downward departure. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and DISMISS the appeal.

       On appeal, Mr. Barrera-Basilio’s counsel filed an       Anders brief and moved

to withdraw as appellate counsel.      See Anders v. California , 

, 744

(1967) (counsel who considers an appeal to be wholly frivolous should advise the

court of that fact, request permission to withdraw from the case, and submit a

brief to the court and to his or her client referring to portions of the record that

arguably support the appeal). In the     Anders brief, counsel argues that Mr.

Barrera-Basilio’s sentence was not imposed contrary to the law, as a result of an

incorrect application of the Sentencing Guidelines, or in excess of the applicable

Guideline range, and that Mr. Barrera-Basilio’s appeal is therefore wholly without

merit. Mr. Barrera-Basilio was given an opportunity to respond on the merits but

did not file a response.

       After fully examining the proceedings as required by       Anders , we conclude

that Mr. Barrera-Basilio’s appeal is indeed without merit. Moreover, we lack

jurisdiction to review a district court’s failure to depart downward in sentencing

absent a claim that the court misunderstood its authority to depart.     United States


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v. Coddington , 

, 1441 (10th Cir. 1997). We find no such

misunderstanding on the part of the district court in this case. The transcript of

defendant’s sentencing hearing includes the sentencing court’s thorough

discussion of its discretionary authority to depart from the guidelines and its

reasons for declining to exercise that authority.

      For the foregoing reasons, counsel’s motion to withdraw is GRANTED and

Mr. Barrerra-Basilio’s appeal is DISMISSED.

                                        ENTERED FOR THE COURT,




                                        Deanell Reece Tacha
                                        Chief Circuit Judge




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