FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 26, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-2150 (D.C. No. 2:18-CR-00818-LRR-1) HUGO PENUELAS-GUTIERREZ, (D.N.M.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before TYMKOVICH, Chief Judge, EBEL and LUCERO, Circuit Judges. _________________________________ Hugo Penuelas-Gutierrez challenges his 37-month sentence for illegal reentry and appeals the district court’s denial of his requests for a downward departure and for a continuation of his sentencing hearing. We lack jurisdiction to review the district court’s denial of a downward departure. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm his sentence and the denial of his motion to continue. I Penuelas-Gutierrez pled guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b) in March 2018. His Presentence Investigation Report * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. (“PSR”) listed a total offense level of 19 and a criminal history category of III, resulting in an advisory Guidelines range of 37 to 46 months. Penuelas-Gutierrez requested a sentence of twelve months and one day. His downward departure request was based on alleged over-representation of his criminal history under U.S.S.G. § 4A1.3(b)(1) and rejection of the ten-level § 2L1.2(b)(2) enhancement as unfair. In the alternative, he requested a variance under the 18 U.S.C. § 3553(a) factors. Penuelas-Gutierrez’s sentencing hearing was set for September 24, 2018. On September 20, he filed an unopposed motion to continue the hearing so his wife and parents could “attend.” His father was likely to undergo hip surgery and could not travel from California to New Mexico at the time. At the hearing, counsel told the court that Penuelas-Gutierrez’s parents and wife wished to “address the court.”1 The district court verbally denied the motion. At sentencing, the government requested a sentence of 37 months. Penuelas- Gutierrez again requested a sentence of twelve months and one day. The district court denied Penuelas-Gutierrez’s requests for a downward departure or variance and sentenced him to 37 months’ imprisonment to be followed by three years of unsupervised release. Penuelas-Gutierrez timely appealed. II To the extent Penuelas-Gutierrez asks us to reverse the district court’s denial of his request for a downward departure, we dismiss this claim for lack of 1 On appeal, counsel asserted for the first time that the family wished to testify under oath. 2 jurisdiction.2 A defendant may appeal a sentence “imposed as a result of an incorrect application of the sentencing guidelines.” § 3742(a)(2), (e)(2). But “the district court’s refusal to exercise its discretion to depart downward from the guideline range is not appealable” as an incorrect application of the sentencing guidelines. United States v. Davis, 900 F.2d 1524, 1530 (10th Cir. 1990). “Congress ...
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