37 F. 3d 1510 - United States v. Jones

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); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

The defendant, Jessie Jones, brings this pro se appeal seeking modification/reduction of his sentence. We affirm.

* Mr. Jones pled guilty to a violation of 21 U.S.C. 846 resulting from his involvement in a conspiracy to possess with intent to distribute cocaine. Consistent with his plea agreement and a U.S.S.G. 5K1.1 motion for downward departure, Mr. Jones was sentenced to forty-one months.

He then filed a 28 U.S.C. 2255 motion for modification of sentence due to his age, bad health and previous cooperation. The district court denied the motion as having "no merit."

On appeal, Mr. Jones argues the district court erred in

denying his motion for a downward departure of sentence. He

seeks to be admitted to a home arrest program and, in

support, notes his age, argues he is receiving inadequate

medical attention, and claims he was not involved in the

drug transaction in his home and had no knowledge of illegal

activity occurring there.

As for his contention that he is not guilty of the offense to which he pled guilty, Mr. Jones waived that issue when he entered into his plea agreement. United States v. Allen, 24 F.3d 1180, 1183 (10th Cir.1994); United States v. Davis, 900 F.2d 1524, 1525-26 (10th Cir.), cert. denied, 498 U.S. 856 (1990).

While the district court, in its discretion, may have departed downward based on Mr. Jones' age and infirmity, we have no jurisdiction to review the trial court's refusal to do so. United States v. Holsey, 995 F.2d 960, 963 (10th Cir.1993) ("we have no jurisdiction to review the district court's discretionary refusal to depart downward from the guidelines because of Holsey's age or poor health").